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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1316  of 2012

Gulam Sarbar                                        …Appellant

Versus

State of Bihar (Now Jharkhand)                                    …Respondent

With

CRIMINAL APPEAL NO.  1967  of 2012

 J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment  and  order  dated  22.3.2012  passed  by  the  High  Court  of  

Jharkhand at Ranchi in Criminal Appeals (DB) Nos. 273 of 1998 (R)  

and 262 of 1998 (R) affirming the judgment and order of conviction  

and sentence dated 26.8.1998 and 31.8.1998 respectively passed by  

the 3rd Additional Sessions Judge, Dhanbad in Sessions Trial No. 112  

of  1997,  by  which  and  whereunder,  the  appellants  in  both  these  

appeals  stood  convicted  alongwith  others,  namely,  Binod  Kumar,

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Asgar Mian @ Asgar Ansari, Paiki Ramm @ Poki Ramm and Mantu  

Das under Sections 302 read with  120-B of Indian Penal Code, 1860  

(hereinafter referred to as the `IPC’) and sentenced to undergo RI for  

life.  

2. Facts and circumstances giving rise to these appeals are that:

A. As  per  the  case  of  the  prosecution,  Dr.  Gopal  Prasad  Sinha  

(PW.7),  informant/complainant  was  going  alongwith  Sant  Kumar  

Sinha  (deceased),  to  Rajganj,  Dhanbad on his  motorcycle  at  about  

8.00  P.M.  on  6.9.1996.   When  they  reached  near  Sant  Nirankari  

Chowk, they saw a scooter and a motorcycle parked at the side of the  

road and six persons  including the appellants  were standing in the  

close proximity thereof, and they signalled the complainant to stop.  

The complainant stopped his motorcycle and enquired as to why they  

were waiting.   But within no time, Yakub Ansari and Dhiren Mahto -  

appellant took out their pistols from their waist and pointed towards  

them and asked why Sant Kumar Sinha (deceased) was disturbing the  

working of the institute run by Binod Kumar.  They threatened Sant  

Kumar  Sinha  (deceased)  to  remain  away  from the  institute.   Sant  

Kumar Sinha (deceased) asked the accused persons how they were  

related to running the affairs of the institute, which led to an exchange  

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of hot words between the deceased and the accused persons.  Accused  

Asgar  started  inflicting  blows  by  means  of  a  knife  and  told  his  

companions  to  complete  the  task  for  which  they  had  come.  

Immediately,  Yakub  opened  fire  at  point  blank  range  from  his  

revolver on the left side of the neck of Sant Kumar Sinha (deceased)  

due  to  which  the  deceased  collapsed  and  died  immediately.  The  

informant/complainant  being  scared  ran  away  from  the  place  of  

occurrence, leaving his motorcycle at the spot.  He met a police party  

to whom he narrated the incident.  On the basis of the Fardbeyan of  

the informant, a case under Sections 302/120-B/379 IPC and Section  

27 of the Arms Act, 1959 (hereinafter referred to as the ‘Arms Act’)  

against the accused, including both the appellants, was registered vide  

FIR No. 175 of 1996. Thus, the investigation ensued accordingly.   

B. After the conclusion of the investigation,  a charge sheet  was  

filed  against  all  the  accused,  showing  Yakub  @  Ayub  as  an  

absconder.  Accordingly,  the  trial  vide  S.T.  No.  112  of  1997  

commenced. The co-accused Yakub @ Ayub was apprehended later  

and was tried separately vide S.T. No. 405 of 1998.  

C. In  order  to  prove  its  case,  the  prosecution  examined  eight  

witnesses including Mithilesh Kumar Sinha (PW.1) – real brother of  

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the deceased, Arvind Kumar (PW.2) – cousin of deceased, Dr. Dhiraj  

(PW.6),  who  conducted  the  post-mortem  examination,  Dr.  Gopal  

Prasad Sinha (PW.7), informant/complainant and brother of deceased  

and Jagdish Prasad (PW.8), the Investigating Officer.  

D. The defence also examined three witnesses.   Gurpreet  Singh  

Mittal (DW.1), was examined only to prove that there was no light in  

Sant Nirankari Bhawan at the relevant point of time, and further to  

show that Nirankari Chowk was at a distance of about 200-250 feet  

away  from  Nirankari  Bhawan.   Vijay  Kumar  Singh  (DW.2)  and  

Suresh Dass (DW.3) were merely formal witnesses.

E.   As per the case of the prosecution, Gulam Sarbar, appellant ran  

away on Yakub’s motorcycle after the incident. He was chased by the  

police and arrested at a short distance from the place of occurrence  

after he jumped a police barricade.  

F. Similarly, Dhiren Mahto left the place of occurrence on LML  

Vespa  Scooter  alongwith  Asgar  Mian.  So  far  as  Dhiren  Mahto  

(appellant) is concerned, he was arrested after a few days on secret  

information of his presence at Naya Bazar.  At the time of raid, the  

said appellant tried to run away on the scooter after seeing the police  

but was chased and  captured near Bartad.

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G. In  his  statement  under  Section  313  of  Code  of  Criminal  

Procedure, 1973 (hereinafter referred to as `Cr.P.C.’), Gulam Sarbar  

simply denied all allegations against him and even denied his presence  

at  the  place  of  occurrence.   Dhirendra  Chandra  Mahto  denied  his  

involvement  by  any  means  in  the  murder  of   Sant  Kumar  Sinha  

(deceased) stating that he had nothing to do with the main accused  

Binod Kumar.  He was a small contractor, however, he did not deny  

his presence at the place of occurrence nor that he had run away on  

the scooter taking away Asgar Ansari as pillion rider.   

H. After considering the material on record, the trial court vide its  

judgment  and  order  dated  31.8.1998  convicted  both  the  appellants  

under  Sections  302  and  120-B  IPC  alongwith  other  accused  and  

sentenced as referred to hereinabove but acquitted Dhirendra Chandra  

Mahto of the charge under Section 27 of the Arms Act.   

I. Aggrieved, they preferred appeals alongwith others before the  

High Court  which stood dismissed by the impugned judgment  and  

order dated 22.3.2012.  

Hence, these appeals.  

3. Shri  Amarendra Sharan,  learned senior  counsel  appearing on  

behalf of Gulam Sarbar and Shri Ashok K. Srivastava, learned senior  

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counsel  appearing on behalf  of  Dhiren Mahto,  have submitted that  

there is no material on record to prove the existence of a conspiracy to  

kill  Sant  Kumar  Sinha  (deceased);  none  of  these  appellants  was  

involved  in  the  affairs  of  the  institute  for  which  there  was  some  

dispute  between  Sant  Kumar  Sinha  (deceased)  and  Binod  Kumar  

(accused).  In fact, both of them had been running a institute jointly  

and one Shipra Sen Choudhery was working as a clerk in the institute  

with  whom  Binod  Kumar  (accused)  developed  illicit  relationship  

which was not liked by Sant Kumar Sinha (deceased), who tried to  

persuade Binod Kumar (accused) not to continue that relationship but  

he was not willing to give up the same. Sant Kumar Sinha (deceased)  

also  informed  the  wife  of  Binod  Kumar  (accused)  about  this  

relationship and there was a quarrel between Shipra Sen Choudhery  

and Binod Kumar’s wife over the same.  Earlier, Binod Kumar had  

opened a new institute and made Shipra Sen Choudhery its Director.  

However,  none  of  these  appellants  were  involved  in  the  entire  

episode.  Even the arrest of Gulam Sarbar from a place near to the  

place of  incident  is  doubtful.   Had it  been so,  the FIR which was  

registered after the arrest of Gulam Sarbar, would contain such facts.  

Even the general diary did not mention what the distance was between  

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the police station and the place from where Gulam Sarbar, appellant,  

was arrested. The investigation had not been conducted properly and  

fairly.   The witnesses,  particularly,  Mithilesh Kumar Sinha (PW.1)  

and Arvind Kumar (PW.2) not being eye-witnesses could not be relied  

upon. No independent witness was examined by the prosecution to  

prove  the  arrest  of  any  of  the  appellants  nor  to  prove  alleged  

recoveries  of  the  motor  cycle  and  the  scooter  in  the  case.    The  

prosecution  case  is  based  on  speculation  and  conjecture  thus,  the  

appeals  deserve  to  be  allowed  and  the  judgment  and  order  of  the  

courts below are liable to be set aside.  

4. Per contra,  Shri Ratan Kumar Choudhuri and Shri Krishnanand  

Pandeya, learned counsel appearing on behalf of the State, opposed  

both these appeals contending that  there are concurrent findings of  

facts and that both accused persons were well acquainted with Binod  

Kumar, the main accused,  and had been seen by the witnesses and  

particularly by Dr. Gopal Prasad Sinha (PW.7) in the institute owned  

by Binod Kumar, accused, prior to the incident.  Their presence on the  

spot  and  the  manner  in  which  they  had  parked  their  vehicles  and  

stopped the motorcycle on which the complainant and deceased were  

travelling  is  enough  to  prove  the  conspiracy.   There  is  no  

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improvement or embellishment in the case of the prosecution against  

any individual accused.  The evidence has rightly been appreciated by  

the courts below and ocular evidence is corroborated by the medical  

evidence.  Thus, the appeals lack merit and are liable to be dismissed.  

5. The  essential  ingredients  of  Criminal  Conspiracy  are  (i)  an  

agreement between two or more persons; (ii) agreement must relate to  

doing or  causing to be done either (a)  an illegal  act;  or  (b) an act  

which is not illegal in itself but is done by illegal means. What is,  

therefore,  necessary  is  to  show meeting  of  minds  of  two or  more  

persons for doing or causing to be done an illegal act or an act by  

illegal means. Mere knowledge or discussion or generation of a crime  

in the mind of the accused, is not sufficient to constitute an offence.  

The  offence  takes  place  with  the  meeting  of  minds  even  if  

nothing further is done. It is an offence independent of other offences  

and  punishable  separately.  Thus,  the  prosecution  is  required  to  

establish the offence by applying the same legal principles which are  

otherwise applicable for the purpose of proving criminal misconduct  

on the part of an accused. Criminal conspiracy is generally hatched in  

secrecy  thus  direct  evidence  is  difficult  to  obtain  or  access.  The  

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offence  can  be  proved  by  adducing  circumstantial  evidence  or  by  

necessary  implication.  Meeting  of  minds  to  form  a  criminal  

conspiracy has to be proved by adducing substantive evidence in cases  

where circumstantial evidence is incomplete or vague. The gist of the  

offence of conspiracy then lies, not in doing the act, or effecting the  

purpose for which the conspiracy is formed, nor in attempting to do  

them between the parties. Agreement is essential. (Vide: Kehar Singh  

& Ors. v. State (Delhi Admn.), AIR 1988 SC 1883; State (NCT of  

Delhi) v. Navjot Sandhu @ Afsan Guru,  AIR 2005 SC 3820;  Mir  

Nagvi Askari v. CBI, AIR 2010 SC 528;  Baldev Singh v. State of  

Punjab, (2009) 6 SCC 564; State of M.P. v. Sheetla Sahai & Ors.,  

(2009) 8 SCC 617; R. Venkatkrishnan v. CBI, AIR 2010 SC 1812;  

and S.Arul Raja v. State of T.N., (2010) 8 SCC 233).  

6. In Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh &  

Anr. v. CBI, (2008) 15 SCC 49, it was held that in order to come  

under this provision it is not necessary for the accused to know the  

detailed  stages  of  conspiracy;  mere  knowledge  of  main  object/  

purpose of the conspiracy would suffice for this Section.  

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Similarly, in  Vikram Singh & Ors. v. State of Punjab, AIR  

2010 SC 1007, this Court dealt with a case where the accused had  

purchased fortwin injection and chloroform. Thus,  it  was held that  

since the purchase of these materials was an initial step towards  

commission of offence,  the presence of co-accused Sonia, though not  

referred to by the witnesses at the time of actual kidnapping would not  

imply  that  she  was  not  privy  to  conspiracy  and  conviction  of  the  

accused under Section 120-B IPC was upheld.   

7. The evidence on record and particularly the deposition of Dr.  

Gopal Prasad Sinha (PW.7) clearly depicts the conspiracy from the  

manner in which the appellants and other accused were present on the  

crossing and stopped the complainant and the deceased.  Admittedly,  

there  was rivalry and ill-will  between Binod Kumar (accused)  and  

Sant Kumar Sinha (deceased)  as they had separated their business of  

running of educational institution and Sant Kumar Sinha did not like  

the illicit relationship between Binod Kumar (accused) and Shipra Sen  

Choudhery, Clerk.  Sant Kumar Sinha (deceased) tried to persuade  

Binod Kumar (accused) to desist from the said illicit relationship and  

Sant Kumar Sinha (deceased) also revealed this fact to the wife of  

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Binod Kumar (accused) and there was not only a verbal fight between  

the wife of Binod Kumar and Shipra Sen Choudhery but also a scuffle  

between  them  on  this  issue  and,  subsequently,  the  wife  of  Binod  

Kumar began living separately.  Therefore,  relations between Binod  

Kumar  (accused)  and  Sant  Kumar  Sinha  (deceased)  had  definitely  

been strained.   

8. Both these appellants and other accused were acquainted with  

Binod Kumar (accused) as well as Sant Kumar Sinha (deceased) and  

were also known to Dr. Gopal Prasad Sinha (PW.7).  They had been  

seen earlier in the institute with Binod Kumar (accused).  

9. The evidence of  Dr.  Gopal Prasad Sinha (PW.7) that  Gulam  

Sarbar  had run away with  the   accused  Yakub @ Ayub on black  

coloured Kawasaki motorcycle and had been arrested within a close  

vicinity of the place of incident, though Yakub successfully escaped,  

inspires confidence.  The names of the appellants and other accused  

had  been  mentioned  in  the  FIR.  In  such  a  fact-situation,  not  

mentioning that Gulam Sarbar had been arrested in the FIR is of no  

significance.   The  LML Vespa  Scooter  BR17-B-4455  used  in  the  

crime was seized in the presence of independent witnesses, namely,  

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Sunil Mandal and Santosh Vikral.  The seizure memo was prepared on  

which both the said panch witnesses put their signatures. The same  

was marked as Exhibit 6-1 and was proved by Jagdish Prasad (PW.8),  

Investigating  Officer.   In  respect  of  the  arrest  of  Gulam  Sarbar,  

Jagdish  Prasad  (PW.8)  has  clearly  deposed  that  he  was  inspecting  

small vehicles in front of the police station alongwith Constable Badre  

Alam at  about  20.05 hrs.,  when he saw two persons on one black  

coloured  Kawasaki  motorcycle  crossing  the  barrier  at  a  very  high  

speed. They were given signal to stop but they did not stop. On the  

contrary,  they pushed the  barrier  and fled  away on which Jagdish  

Prasad  (PW.8)  and  Constable  Badre  Alam  chased  them.   Gulam  

Sarbar jumped from the motorcycle near Bartand Pulia and tried to  

flee but was controlled and captured by them and upon interrogation,  

he  revealed  that  Yakub was the person who had run away on the  

motorcycle.  Jagdish Prasad (PW.8) I.O. received secret information  

that the motorcycle used in the crime had been hidden in the house of  

Yakub (accused).  A search was conducted of his house in presence of  

two  independent  witnesses,  namely,  Muslim  Ansari  and  Bhagirath  

Razak and the same was recovered. A seizure memo was prepared and  

was signed by the said two witnesses.  The said seizure memo was  

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marked  as  Exhibit  -  6  and  proved  by  Jagdish  Prasad  (PW.8),  

Investigating Officer.

  10. Jagdish  Prasad  (PW.8)  deposed  that  he  received  secret  

information about the whereabouts of the appellant Dhiren Mahto and  

he conducted raid at Naya Bazar alongwith other police officials and  

Constable  Badre  Alam.  Though  he  tried  to  escape,  he  was  

apprehended  and arrested  and LML Vespa  Scooter  BR 17-B-4455  

was recovered. The arrest memo and recovery memo of the scooter  

was prepared in the presence of independent witnesses namely, Sunil  

Mandal and Santosh Vikral and the seizure memo was signed by the  

said witnesses. The same was marked as Exhibit 6-1 and was proved  

by him.  

It  was at  a later  stage that  the other  accused were arrested.     

11. Learned senior counsel  appearing on behalf of the appellants  

have submitted that neither the witness of arrest memo of either of the  

appellants nor the panch witness of the recovery of scooter and motor  

cycle used in the crime has been examined by the prosecution. Even  

the police Constable Badre Alam who accompanied Jagdish Prasad  

(PW.8)  I.O.  at  the  time  of  arrest  of  Gulam  Sarbar  has  not  been  

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examined. Therefore, the case of arrest of the appellants as well as the  

recovery of the vehicles is not worth acceptance and the whole case of  

the prosecution becomes doubtful.  

12. We had been taken through the  entire  deposition  of  Jagdish  

Prasad (PW.8), Investigating Officer, however, no such question was  

put  to  him  as  to  why  those  witnesses  were  not  examined.  In  the  

absence  of  putting  such  an  issue  to  Jagdish  Prasad  (PW.8),  

Investigating Officer, the appellants cannot seek any benefit of such  

omission or error by the prosecution in conducting of trial.   

13. This  Court  in  Laxmibai  (Dead)  Thr.  L.Rs.  &  Anr.  v.  

Bhagwantbuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 dealt  

with the issue raised herein observing as under:  

“31.  Furthermore,  there  cannot  be  any  dispute  with   respect  to the settled legal proposition,  that  if  a party   wishes to raise any doubt as regards the correctness of   the statement of a witness, the said witness must be given   an opportunity to explain his statement by drawing his   attention to that part of it, which has been objected to by   the other party, as being untrue. Without this, it is not   possible to impeach his credibility. Such a law has been   advanced in view of the statutory provisions enshrined in   Section 138 of the Evidence Act, 1872, which enable the   opposite  party  to  cross-examine  a  witness  as  regards   information  tendered  in  evidence  by  him  during  his   initial  examination  in  chief,  and  the  scope  of  this   provision stands enlarged by Section 146 of the Evidence   

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Act, which permits a witness to be questioned, inter-alia,   in order to test his veracity. Thereafter, the unchallenged   part of his evidence is to be relied upon, for the reason   that  it  is  impossible  for  the  witness  to  explain  or   elaborate upon any doubts as regards the same, in the   absence  of  questions  put  to  him  with  respect  to  the   circumstances which indicate that the version of events   provided by him, is not fit to be believed, and the witness   himself, is unworthy of credit. Thus, if a party intends to   impeach  a  witness,  he  must  provide  adequate   opportunity to the witness in the witness box, to give a   full  and  proper  explanation.  The  same  is  essential  to   ensure fair play and fairness in dealing with witnesses.”

(See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR  

1999 SC 3571;  Ghasita Sahu v.  State of  Madhya Pradesh,  AIR  

2008 SC 1425;  Rohtash Kumar v. State of Haryana, JT 2013 (8)  

SC 181; and  Gian Chand & Ors. v. State of Haryana, JT 2013 (10)  

SC 515).

14. In the matter of appreciation of evidence of witnesses, it is not  

the  number  of  witnesses  but  quality  of  their  evidence  which  is  

important, as there is no requirement under the Law of Evidence that  

any  particular  number  of  witnesses  is  to  be  examined  to  

prove/disprove a fact. It is a time- honoured principle that evidence  

must be weighed and not counted. The test is whether the evidence  

has a ring of truth, is cogent, credible and trustworthy or otherwise.  

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The  legal  system  has  laid  emphasis  on  value  provided  by  each  

witness,  rather  than the  multiplicity  or  plurality  of  witnesses.  It  is  

quality and not quantity, which determines the adequacy of evidence  

as has been provided by Section 134 of the Evidence Act. Even in  

Probate cases, where the law requires the examination of at least one  

attesting witness, it has been held that production of more witnesses  

does not carry any weight. Thus, conviction can even be based on the  

testimony  of  a  sole  eye  witness,  if  the  same  inspires  confidence.  

(Vide: Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC  

614; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC  

1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC  

3638;  Mahesh & Anr. v.  State of Madhya Pradesh (2011) 9 SCC  

626;  Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1  

SCC 10; and  Kishan Chand v.  State of Haryana JT 2013( 1) SC  

222).  

15. If the prosecution had not examined the Panchnama witnesses  

and witnesses to the arrest memos of the appellants,  the appellants  

could have examined them in their defence.

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16.   The prosecution has successfully established the involvement of  

the appellants in the crime and the manner in which the crime has  

been  committed  establishes  the  conspiracy.  The appellants  in  their  

statement under Section 313 Cr.P.C. did not furnish any satisfactory  

explanation of the circumstances under which they were present at the  

place of occurrence.  More so, the manner in which they fled away  

after the commission of the crime clearly indicates their involvement  

in the offence to conduct a conspiracy. Gopal Prasad Sinha (PW.7)  

has no enmity with either of the appellants and there was no reason  

for him to involve them falsely in such a heinous crime.

17. Thus, the trial court after appreciating the evidence recorded the  

findings of fact regarding the presence of the appellants at the place of  

occurrence as well as the presence of  Dr. Gopal Prasad Sinha (PW.7).  

The  said  witness  was  well  acquainted  with  all  the  accused  and  

particularly the appellants.  He had seen them alongwith Binod Kumar  

(accused) gathering all the accused at the place of occurrence.  Some  

of the accused persons particularly Gulam Sarbar engaged and used to  

sit together in a gumti and have tea there.  A conspiracy was hatched  

by  Binod  Kumar  (accused)  as  Sant  Kumar  Sinha  (deceased)  had  

created problems in his family life as well as in his business because  

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the deceased did not like the illicit relationship between Binod Kumar  

(accused) and Shipra Sen Choudhery.  The manner in which the crime  

was committed it seems that it was a pre-planned murder.   There was  

sufficient light in the nearby building Nirankari Bhavan at the time of  

commission  of  the  offence.   There  was  no  material  contradiction,  

embellishment or improvement in the deposition of Dr. Gopal Prasad  

Sinha  (PW.7).   The  defence  though  examined  three  witnesses  but  

none of them was relevant for their purpose.   

The trial  court  acquitted Dhiren Mahto  of  the charges  under  

Section 27 of the Arms Act giving cogent reasons.  

18. The  High  Court  reappreciated  the  evidence  and  upheld  the  

findings of facts recorded by the trial court observing that the ocular  

evidence  was  in  consonance  and  in  conformity  with  the  medical  

evidence and it was a clear cut case of conspiracy.  The High Court  

rightly observed that normally the perpetrator of crime in a case of  

conspiracy does not take part in the execution rather such conspirator  

hires some criminal directly or indirectly to execute the evil design  

planned by him. There may be circumstances where the conspirator  

remains vigilant to conceal  his identity and would not  disclose the  

actual motive behind the conspiracy.     

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19. Thus,  we  do  not  see  any  reason  for  interfering  that  the  

prosecution  witnesses  have  deposed  falsely  to  implicate  the  

appellants.

20. Thus, in view of the above, the facts and circumstances of these  

appeals do not warrant interference.  The appeals lack merit and are  

dismissed accordingly.     

….………………..........J.  (DR. B.S. CHAUHAN)  

…...................................J.                                                (S.A. BOBDE)  

NEW DELHI;  October 7, 2013       

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