Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

  CRIMINAL     APPEAL     NO.      2001     OF     2008   

Baliya@ Bal Kishan  …Appellant

Versus

State of M.P. …Respondent  

With

Criminal     Appeal     No.     2002     of     2008      

J     U     D     G     M     E     N     T   

RANJAN     GOGOI,     J.   

Criminal Appeal No. 2001/2008 has been filed by  

accused Baliya whereas Criminal Appeal No.2002/2008 has  

been filed by co-accused, Gopal. Both the appellants are  

aggrieved by the common order dated 20.4.2007 passed by the

Page 2

High Court of Madhya Pradesh by which the conviction of the  

appellants under Section 120B  read with Section 302 IPC and  

the sentence imposed has been affirmed.

2. The short case of the prosecution is that on 11.10.1991  

Head Constable, Mukesh Kumar (PW 7), of Police Station  

Balwada, while returning from the Court where he had gone to  

attend the hearing of a case, found a person lying unconscious  

on the road side on Indore road.  As the person was profusely  

bleeding PW-7 sent information to the police station, Balwada,  

which was entered in the General Diary of the police station.  

Thereafter, the victim was brought to the hospital where he  

was declared dead. As there were injuries on the person of the  

deceased, PW 14, S.S. Tomar (Inspector of Police) registered an  

offence under Section 302 and took up investigation of the  

case. On completion of investigation, the two appellants’  

alongwith co-accused Manish (since dead) and Chhotu  

(acquitted) were charge sheeted for the offence under Section  

120-B read with Section 302 IPC. The offences being triable by  

the Court of Sessions, the case was committed to the court of  

the learned Special Sessions Judge, West Nimar  

2

Page 3

Mandaleshwar (M.P.). Charges under the aforesaid Sections of  

the Penal Code were framed against all the accused to which  

they pleaded not guilty and claimed to be tried. In the course  

of the trial prosecution examined as many as 14 witnesses  

besides exhibiting a large number of documents. Accused  

Manish died in the course of the trial whereas the remaining  

accused including the two appellants contested the charges  

framed against them. At the conclusion of the trial, while  

accused Chhotu was exonerated of the charges levelled, the  

accused-appellants have been convicted as aforesaid and  

sentenced to undergo, inter alia, rigorous imprisonment for  

life. The said conviction and sentence has been maintained by  

the High Court in the two separate appeals filed by the  

appellants giving rise to the present appeals.

3. We have heard Shri S.K. Bhattacharya, learned counsel  

for the appellants and Shri C.D. Singh, learned counsel on  

behalf of the respondent-State. We have also considered the  

evidence of the key witnesses examined by the prosecution as  

well as the several documents exhibited in the course of the  

3

Page 4

trial. We have also perused the orders of the learned Trial  

Court as well as of the High Court.

4. The deposition of PWs 1,4,5,6,8 and 11 who are the key  

witnesses examined by the prosecution may now be noticed:   

According to PW 1, the first informant, on the day of the  

occurrence, in the late afternoon, he was returning from the  

factory alongwith two lineman of the M.P. Electricity Board  

who had gone to the factory to carry out an inspection of a  

fault that had occurred in the electric connection. All the three  

were coming back from the factory in one scooter. According to  

PW 1, from the other side, accused Manish, deceased Pradeep  

and accused Gopal were coming on a red motor cycle  

belonging to the accused Manish. As deceased Pradeep had  

asked him to stop PW-1 stopped the scooter and on being  

asked by the deceased he informed him that they were coming  

from the factory after getting the electric fault inspected.  

According to PW 1, at that point of time accused Gopal went  

away in the direction of the Gayatri Market and the deceased  

alighted from the motor cycle and after talking to PW 1, he  

4

Page 5

drove away in the motor cycle with the other accused i.e.  

Manish. According to PW 1, the scooter by which he had  

brought the lineman belonged to the deceased and he was  

going to return the same. However, the brother of the  

deceased, one Mukesh (PW 5), asked for the scooter and as the  

house of PW 1 was near the Gayatri Market both of them i.e.  

PW 1 and PW 5 Mukesh rode the scooter together up to a  

certain point. Thereafter, PW 1 went to his house and shortly  

thereafter he came to know from one Satya Vijaya that the  

deceased Pradeep had been stabbed by somebody with a knife.  

5. PW 3, Asha, examined as an eye witness was declared  

hostile. PW 4 Gangabai who was examined as another eye  

witness of the occurrence had deposed that on the day of the  

occurrence she alongwith PW 3 were returning from the  

factory after the day’s work. This was at about 5 p.m. When  

they had reached Chor Bavadi she saw three persons  

quarreling and one person being stabbed. PW 4 also deposed  

that there was a red colour Motorcycle on which the persons  

were seated. The deposition of PW 4 further indicates that  

though she could not identify any of the alleged assailants in  

5

Page 6

police custody, she had identified accused Baliya and Gopal  

in the court.

6. PW 5, Mukesh, is the brother of the deceased.  According  

to this witness, after the deceased Pradeep and PW 1 had  

completed their conversation, the deceased had left towards  

Indore road alongwith accused Gopal and Manish. This part of  

the evidence of PW 5 is discrepant with the evidence of PW 1  

who had stated that at this point of time accused Gopal had  

parted company and had gone in the direction of the Gayatri  

Market, while the deceased had gone away in the Motorcycle  

with accused Manish. Furthermore, according to PW 5, after  

PW 1 had dropped the linemen and alongwith PW 5 had come  

to Gayatri Market accused Gopal had again appeared and had  

taken away the scooter.  Shortly, thereafter, he was informed  

about the incident.

7. PW 6 Shantilal is a witness to the recovery and seizure of  

the wearing apparels of accused Gopal from the house of co-

accused Chhotu (since acquitted). He is also a witness to the  

recovery of a knife at the instance of the accused Manish.

6

Page 7

8. PW 8, Kamlesh Kumar Sharma, is another brother of the  

deceased. According to this witness at about noon time on the  

day of the occurrence while he was going home for his meal,  

he had seen one Dr. Sandhya Swami with the two accused  

appellants and accused Manish. PW 8 has deposed that Dr.  

Sandhya Swami, in a loud voice, was blaming accused Baliya  

that her reputation has been smeared because of him and that  

a pamphlet has been published with regard to her relationship  

with the accused Baliya. This witness has also deposed that  

the accused Baliya had stated that he knew the identity of the  

author of the pamphlet and had told accused Gopal and  

Manish that the said person should be done away with.  

Similar is the deposition of PW 11, Mansoor Khan. According  

to PW 11, when he was going to the market he found Dr.  

Sandhya Swami and accused Baliya talking in the course of  

which Dr. Sandhya Swami was telling Baliya that she has  

suffered in reputation on account of him and that a pamphlet  

has been published against her and others. According to PW1,  

he had heard accused Balia telling accused Manish and Gopal  

7

Page 8

that Pradeep should not be spared and that he should be  

killed.

9. A consideration of the evidence adduced by the  

prosecution witnesses, the core of which has been noticed  

above, would go to show that though two alleged eye witnesses  

were examined by the prosecution not much reliance can be  

placed on the testimony of either. PW 3, Asha, had been  

declared hostile by the prosecution whereas the evidence of  

PW 4, Gangabai, suffers from material discrepancies if read  

with the evidence of PW 1 and 5, particularly, in respect of the  

role of the accused, Baliya. While PWs 1 and 5 does not  

mention about the presence of accused Baliya at the place of  

occurrence, PW 4 had identified the said accused in Court as  

been one of the assailants. The said witness, however, could  

not identify any of the accused while they were in police  

custody. In such circumstances, it will not be safe and  

prudent to place any reliance on the evidence of PW 4.  

10. In the absence of any credible ocular evidence, the  

prosecution in order to succeed has to establish  

8

Page 9

circumstances adverse to the accused from which an influence  

of guilt can reasonably follow.  A scrutiny of the prosecution  

evidence, noticed above, would go to show that in so far as the  

charge of criminal conspiracy under Section 120B IPC is  

concerned, the prosecution has sought to establish that a  

pamphlet authored/published by the deceased was in  

circulation casting doubt on the character of Dr. Sandhya  

Swami and her relationship with the accused Baliya. The said  

pamphlet though seized in the course of investigation was not  

exhibited in the trial.  From the evidence of PW 8 and PW 11 it  

transpires that in the afternoon of the day of the occurrence  

they had over heard a conversation between Dr. Sandhya  

Swami and Baliya with regard to the pamphlet distributed in  

the course of which the accused Baliya had stated that he  

knew who is the author of the pamphlet. From the evidence  

aforesaid two witnesses i.e PWs 8 and 11, it further transpires  

that Baliya had informed accused Manish and Gopal that it is  

Pradeep who was responsible for the pamphlet and that he  

should be killed. Shortly thereafter, the dead body of Pradeep  

was found lying on the road. From the evidence of PWs 1 ad 5  

9

Page 10

the prosecution has sought to establish that a little while  

before his death the deceased was seen in the company of  

accused Manish and Gopal and that the deceased was seen by  

PWs 1 and 5 riding on a red motorcycle belonging to accused  

Manish. Over and above the aforesaid circumstances, from the  

evidence of PW 6, the prosecution has tried to establish that  

blood stained clothes of accused Gopal was recovered at the  

instance of the said accused whereas a knife was recovered at  

the instance of accused Manish. The aforesaid blood stains,  

according to the prosecution, stood proved by the F.S.L.  

Report which was duly exhibited in the trial.

11. Having considered the evidence adduced by the  

prosecution witnesses we find that in so far as the publication  

of the pamphlet; the conversation between Dr. Sandhya Swami  

and the accused Baliya and the statements attributed to  

accused Baliya along with the instructions to accused Manish  

and Gopal that Pradeep should be killed had been proved by  

the prosecution. Though the prosecution has also sought to  

prove that the deceased was seen in the company of accused  

10

Page 11

Manish and Gopal shortly before his death there is some  

amount of discrepancy in the evidence of PWs 1 and 5, in this  

regard, as already noticed. That the accused Manish owned a  

red colour motorcycle and the use of such a motorcycle by the  

accused and the deceased shortly before the death had  

occurred have also been proved by the prosecution. There is  

also no doubt with regard to the recovery of blood stained  

clothes of the accused Gopal at the instance of the said  

accused and also the recovery of a knife at the instance of the  

accused Manish.  What has fallen for our determination is  

whether on the aforesaid proved circumstances, the appellants  

are liable for the offences alleged against them?   

12. The offence of “criminal conspiracy” is defined in Section  

120A of the Indian Penal Code whereas Section 120B of the  

Code provides for punishment for the said offence. The  

foundation of the offence of criminal conspiracy is an  

agreement between two or more persons to cooperate for the  

accomplishment/performance of an illegal act or an act which  

is not illegal by itself, through illegal means. Such agreement  

or meeting of minds create the offence of criminal conspiracy  

11

Page 12

and regardless of proof or otherwise of the main offence to  

commit which the conspiracy may have been hatched, once  

the unlawful combination of minds is complete,  the offence of  

criminal conspiracy stands committed.

13. More often than not direct evidence of the offence of  

criminal conspiracy will not be forthcoming and proof of such  

an offence has to be determined by a process of inference from  

the established circumstances of a given case. The essential  

ingredients of the said offence; the permissible manner of  

proof  of commission thereof  and the approach of the courts  

in this regard has been exhaustively considered by this Court  

in several pronouncements  of which, illustratively,  reference  

may be made to E.K. Chandrasenan v. State of Kerala1,  

Kehar Singh & Ors. v. State (Delhi Administration)2, Ajay  

Aggarwal v. Union of India3 and Yash Pal Mittal v. State  

of Punjab4.

1     1995 (2) SCC 99  2     1988 (3) SCC 609 3     1993 (3) SCC 609 4     1977 (4) SCC 540

12

Page 13

14. The propositions of law which emanate from the above  

cases are, in no way, fundamentally different from what has  

been stated by us hereinabove. The offence of criminal  

conspiracy has its foundation in an agreement to commit an  

offence or to achieve a lawful object through unlawful means.  

Such a conspiracy would rarely be hatched in the open and,  

therefore, direct evidence to establish the same may not be  

always forthcoming. Proof or otherwise of such conspiracy is a  

matter of inference and the court in drawing such an inference  

must consider whether the basic facts i.e. circumstances from  

which the inference is to be drawn have been proved beyond  

all reasonable doubt, and thereafter, whether from such  

proved and established circumstances no other conclusion  

except that the accused had agreed to commit an offence can  

be drawn. Naturally in evaluating the proved circumstances  

for the purposes of drawing any inference adverse to the  

accused, the benefit of any doubt that may creep in must go to  

the accused.

15. Applying the above tests we find that in the present case  

the prosecution had proved, through the evidence of PWs 8  

13

Page 14

and 11, the conversation between Dr. Sandhya Swami and the  

accused Balia to the effect that the reputation of Dr. Sandhya  

Swami had suffered because of accused Balia and further that  

a pamphlet in this regard has been published. The  

prosecution has also succeeded in proving that the accused  

Balia had stated that he knew who was the author of the  

pamphlet and that Balia had told accused Manish and Gopal  

that the author of the pamphlet (deceased Pradeep) should not  

be spared. While this happened in the afternoon of the day of  

the occurrence, in the early part of the evening hours the  

deceased Pradeep was found lying injured on the road and on  

being brought to the hospital, was declared dead.  Whether on  

this evidence the conclusion that the accused appellant had  

hatched a conspiracy to commit the murder of Pradeep can be  

drawn to the exclusion of all other possible conclusions is the  

question that requires our answer.

16. We have already held that in the present case, from the  

evidence of PWs 8 and 11, the prosecution has succeeded in  

establishing the conversation between the accused persons  

and Dr. Sandhya Swami details of which need not be repeated.  

14

Page 15

In coming to the above conclusion, we had considered the  

arguments advanced on behalf of the accused that the said  

fact is inherently improbably as such a conversation is  

alleged to have occurred in a busy market place and the  

exchanges are reported to have been in a loud voice within the  

hearing of the people in the immediate vicinity, like PWs 8 and  

11.  Balancing the totality of the facts and keeping in mind the  

strata of society to which the accused persons  

belong/belonged it will be difficult to disbelieve what has been  

stated by the prosecution witnesses in a clear and cogent  

manner merely on the assertion that such an event is  

impossible.  However, even accepting the prosecution version  

what reasonably follows therefrom is that Dr. Sandhya Swami  

had complained to accused Balia that her reputation has been  

smeared because of the pamphlet; that accused Balia had  

stated that he knew who was the author of the pamphlet and  

further that he had stated to accused Manish and Gopal that  

the author of the pamphlet (deceased Pradeep) should be  

killed. But what is conspicuous by its absence is the essential  

meeting of minds between accused Balia, Manish and Gopal to  

15

Page 16

commit the murder of the deceased. No evidence is  

forthcoming as to what was the response of accused Manish  

and Gopal to the statement made by Balia to the effect that  

the author of the pamphlet must be done away with.  In the  

absence of any material to establish the said fact the vital  

chain or link to enable us to satisfy ourselves with regard to  

an agreement or meeting of minds amongst the accused to  

commit the murder of deceased Pradeep is lacking. The alleged  

participation of the accused in the commission of the actual  

act of murder cannot be evidence of the conspiracy in as much  

as the commission of murder must be the result of the  

conspiracy already hatched.  The alleged acts attributed to the  

accused insofar as the offence of murder is concerned,  

naturally, has to be considered separately in order to  

determine the liability of the accused for the said offence.  

17. The above would now require the Court to consider  

whether either of the appellants can be held to be liable for the  

offence under Section 302 IPC. We have already indicated that  

we do not find the evidence of PW 4 to be credible or reliable in  

so far as identification of accused Balia at the place of  

16

Page 17

occurrence is concerned. If the evidence of the alleged eye  

witnesses (PW 4) is to be excluded, as it has to be, the accused  

Balia has not been implicated, in any manner whatsoever, by  

the circumstances that the prosecution has sought to  

establish by examining PWs 1 and 5. The aforesaid witnesses  

have nowhere mentioned that the accused Balia was present  

at any point of time or at the place when the occurrence took  

place.   The said witnesses have, at best, implicated accused  

Gopal as being seen with the deceased Pradeep along with the  

accused Manish shortly before the incident.  However, as  

already indicated, there is a serious discrepancy in the  

evidence of PWs 1 and 5 with regard to the presence of the  

accused Gopal in the company of the deceased immediately  

before the crime. The prosecution version of last seen together  

even if it is hypothetically accepted in its entirety, at the  

highest, would establish only a solitary incriminating  

circumstance against the accused, which in our considered  

view cannot give rise to the conclusion that the accused Gopal  

must be held liable for the murder of the deceased Pradeep.  

17

Page 18

Recovery of the blood stained clothes of the accused Gopal at  

his instance, by itself, again will not be sufficient.

18. In view of the foregoing discussions we are of the view  

that the conviction of the accused appellants under Section  

120 B read with Section 302 IPC is not legally sustainable.  

We, therefore, allow appeals, set aside the judgment and order  

dated 20.4.2007 passed by the High Court of Madhya Pradesh  

in Criminal Appeal Nos.394/1998 and 395/1998 and acquit  

both the accused appellants of the offences for which they  

were charged. The accused appellants be set at liberty  

forthwith unless their custody is required in connection with  

any other case.

...………………………J. [P. SATHASIVAM]

.........…………………J. [RANJAN GOGOI]

New Delhi, October 05, 2012.         

18