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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1261 OF 2009

INDRA DALAL .....APPELLANT(S)

VERSUS

STATE OF HARYANA .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 1620 OF 2009

A N D

CRIMINAL APPEAL NO. 1189 OF 2011

J U D G M E N T

A.K. SIKRI, J.

First Information Report (FIR) No. 99 dated May 24, 2001

was registered at Police Station: City Dadri, Haryana.  In this FIR,

five persons were implicated and made accused for committing

the  murder  of  one  Nand Karan  (hereinafter  referred  to  as  the

'deceased').   Out  of  them, three appellants are before us who

were  tried  together  and  convicted  for  the  said  offence  by  the

Sessions Court vide judgment dated April 11, 2008, followed by

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the order of sentence dated April 12, 2008 sentencing them for life

imprisonment  and  also  to  pay  a  fine  of  ₹10,000  each  for

commission of the offence punishable under Section 120-B read

with Section 302 of the Indian Penal Code, 1860.  In default of

payment of fine, it was directed that they would undergo simple

imprisonment for a period of one year each.  One more person

was  also  made  accused  and  tried  with  these  appellants.

However, he was acquitted of the charges framed against him.

Fifth person, Udeyveer @ Udey @ Sandeep, who was also an

accused in the said charge-sheet, was convicted by a separate

judgment pronounced on the same date, i.e. on April  11, 2008,

and given the identical sentence.  All the four convicted persons

appealed to  the High Court.   The High Court  dismissed these

appeals  affirming  the  conviction  and  sentence  passed  by  the

learned Additional Sessions Judge-II, Bhiwani.  Udeyveer has not

preferred any further appeal.  The three appellants before us in

these three appeals, however, chose to challenge the judgment of

the High Court by filing special leave petitions, in which leave was

granted earlier.

2) Now, we take note of the case of the prosecution, in brief, which

can be safely culled out from the impugned judgment of the High

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Court  as  there  is  no  dispute  that  the  said  judgment  correctly

records the prosecution version:

3) The deceased Nand Karan, a retired Master, and his wife Suraj

Kaur, were residing in the house known as 'Lal Kothi' situated on

the Loharu Road, Dadri.  On May 24, 2001, at about 8.00 p.m.,

the deceased, his wife and his brother Harish Chander Godara

were  present  in  the  house.   While  the  deceased's  wife  was

watering the plants in the lawn, the deceased inside the room and

his brother on the roof, one young boy aged about 22-25 years,

came on a scooter.  He told Suraj Kaur that he had come from

Rohtak and wanted to meet Master Nand Karan.  When she was

talking with that boy, the deceased came out of the house to the

gate.  Suraj Kaur told the deceased that a boy had come to meet

him.  Soon thereafter, the boy took out a pistol from his pant's

pocket and fired at the deceased on his chest.  Another shot was

fired at the head of the deceased.  The deceased fell down crying.

After hearing the sound of shots fired, Harish Chander Godara,

brother  of  the deceased,  immediately  came down to  the  spot.

After  throwing the pistol  at  the spot,  the boy ran away on the

scooter on which he came.  After the occurrence, many persons,

including  Suresh  Kumar,  s/o.  Hoshiar  Singh,  and  Jaipal,  s/o.

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Kamal Singh, reached the spot.  After arranging vehicle, they took

the deceased to the hospital, where he was declared dead.  Dr.

H.L. Beniwal (PW-3), who attended the deceased at the hospital,

declared him dead and sent a  ruqqa  (Exhibit PE) to the Station

House Officer, Dadri  Police Station at  9.10 p.m.,  regarding the

dead body being brought by Suresh Kumar and Jaipal.

4) In the hospital, statement of Suraj Kaur (Exhibit PA) was recorded

by  Sub-Inspector  Ram Chander  (PW-17)  on  May  24,  2001  at

11.00  p.m.   In  her  statement,  she  narrated  the  abovesaid

occurrence and further stated that her husband was got murdered

by  Dr. Indra Dalal,  her  brother  Bijender  @ Vijay  and Mahabir,

through some unknown person, by hatching a conspiracy.  The

cause  of  grudge,  as  stated  by  her,  was  that  an  allegation  of

murder  was  levelled  by  them  against  her  husband,  her  son

Ravinder Kumar and one Sandeep, s/o. Mahabir Singh and in that

regard a criminal trial under Section 302 IPC was pending.  Her

son and Sandeep are in jail in connection with the alleged murder.

However, her husband was released on bail about three months

back.  Due to the said grudge, Indra Dalal, her brother Bijender @

Vijay and Mahabir committed the murder of her husband by hiring

a  contract  killer  in  a  conspiracy.   On  the  basis  of  the  said

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statement,  FIR  (Exhibit  PA/1)  was  registered  at  Police  Station

Dadri on May 24, 2001 at 11.10 p.m.  Special report of the said

FIR was received by the area Magistrate at 12.30 a.m. on May

25, 2001.

5) On May 25, 2001, post mortem of the deceased was conducted

by Dr. Anil Chaudhary (PW-4), Dr. H.L. Beniwal and Dr. Giri Raj.

They found two gun shot injuries on the body of the deceased,

one on the chest and the other on the brain.  One pallet each was

got  removed  from  those  injuries.   In  the  post  mortem  report

(Exhibit PF), the cause of death of the deceased was stated to be

haemorrhage and shock due to gun shot injury on vital organs.

6) The prosecution case, thus, in nutshell is this:  One Dipender @

Banti, who was the son of the appellant Indra Dalal and nephew

of Bijender, was murdered, in which deceased Nand Karan was

implicated  along  with  his  sons,  namely,  Ravinder  Kumar  and

Sandeep, who were even in jail in that connection. In order to take

revenge, the appellants Indra Dalal and her brothers Bijender and

Mahabir had hatched a conspiracy to kill Nand Karan, for which

they enticed Udeyveer and got him murdered through him.

7) Investigation was conducted on the basis of the aforesaid FIR.

During  the  investigation,  statements  of  Suresh  and  Harish

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Chander  Godara  were  recorded.   Harish  Chander  Godara

mentioned that the registration number of the scooter, on which

the assailant Udeyveer came, was HR 20G 1102.  The clothes of

the deceased, one fired bullet, one cartridge of fired bullet were

seized along with certain other articles, on which CFL report was

obtained.   Post  mortem  was  conducted  on  the  body  of  the

deceased.

8) On May 31, 2001, appellant Bijender was arrested.  He allegedly

made a disclosure/confessional statement (Exhibit PH) admitting

the aforesaid conspiracy and motive for committing the murder of

the  deceased.   On  June  02,  2001,  appellant  Indra  Dalal  was

arrested  and  she  also  made  a  similar  disclosure/confessional

statement (Exhibit PT).  On the same day, another confessional

statement (Exhibit PK) was made by Bijender.

9) As per  the investigation,  Police recorded the statement  of  one

Pradeep Kumar, s/o. Daya Nand, on July 07, 2001, who was a

resident of Charkhi Dadri.  He stated that on May 27, 2001, he

had went  to  the clinic  of  the appellant  Indra Dalal  for  medical

checkup of his wife.  At that time, Bijender came there and both

the appellants went inside.  When she did not come out for some

time,  Pradeep  Kumar  went  near  the  door,  which  was  slightly

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open, and heard the talks of both the appellants, as per which

Bijender was telling Indra Dalal that he had engaged Udeyveer for

killing  Nand Karan.   During  investigation,  a  cream colour  LML

scooter bearing registration No. HR 20G 1102 was recovered on

July 13,  2001 from the old house of  Indra Dalal  vide recovery

Exhibit PD.

10) Thereafter, the other appellant Jaibir was arrested on December

10,  2001,  who also gave his  disclosure/confessional  statement

(Exhibit  PL) to the same effect  as was given by the other two

appellants Indra Dalal and Bijender.  He further stated that he had

given the scooter in question to Udeyveer and Ramesh for that

purpose.  On his naming Ramesh, he was also arrested and his

disclosure/ confessional statement (Exhibit PO) was recorded on

December  23,  2001  on  the  same  lines.   After  investigation,

challan  was  filed  against  these  accused  persons,  except

Udeyveer,  who  could  not  be  arrested  and  was  declared  a

proclaimed offender.  However, during the pendency of the trial,

Udeyveer  was  also  arrested  on  February  07,  2004.   His

disclosure/confessional statement (Exhibit PN) was recorded as

well.

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11) During the trial, in the challan/case filed against these appellants

and  also  against  Ramesh,  the  prosecution  examined  eighteen

witnesses.  These include Suraj Kaur/complainant (PW-1), who

supported  the  prosecution  version,  Harish  Chander  Godara,

brother  of  the  deceased  (PW-2),  who  had  also  supported  the

prosecution  version,  Dr.  H.L.  Beniwal  (PW-3),  who  had  sent

ruqqa  (Exhibit  PE) to the Station House Officer, Police  Station

Dadri,  Dr.  Anil  Chaudhary  (PW-4),  who  conducted  the  post

mortem of the deceased, and Pradeep Kumar (PW-7), who was

the  alleged  witness  of  conspiracy,  but  he  did  not  support  the

prosecution version and was declared hostile.  Other witnesses

were  mostly  police  officials  who  proved  one  or  the  other

disclosure/confessional statements of these accused persons as

well as the Investigating Officer who conducted the investigation.

Gulab  Singh  (PW-18),  Registration  Clerk  with  the  Regional

Transport Office, was also produced, who stated that as per the

record,  Jaibir  s/o.  Kanshi  Ram,  was the  owner  of  the  scooter

which was seized by the Police.  In the statements of the accused

persons  recorded  under  Section  313  of  the  Code  of  Criminal

Procedure, 1973, all of them stated that they were innocent and

were falsely implicated in the case.  They also pleaded that their

confessional statements were recorded by putting pressure upon

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them to compromise the matter of murder of son of Indra Dalal.

12) Supplementary  charge-sheet  was  filed  against  accused

Udeyveer,  in  which  the  prosecution  examined  seventeen

witnesses.  However, since Udeyveer has not filed any appeal, we

are  eschewing  the  discussion  pertaining  to  the  evidence

appearing against him.

13) As mentioned above, the trial court acquitted only Ramesh and

convicted  all  other  accused  persons  and  the  High  Court  has

affirmed the same.  The reading of the impugned judgment of the

High Court would disclose that major portion of the judgment is

devoted to the alleged role of accused Udeyveer and the Court

came to the conclusion that there was sufficient evidence against

him proving his guilt, who had actually murdered the deceased.

Insofar as the appellants are concerned, admittedly they have not

taken active part in the commission of crime, namely, there is no

actus reus.  However, they have been implicated as the accused

who actively hatched conspiracy to murder the deceased and for

this purpose hired the assassin Udeyveer for a consideration of

₹3,00,000/-.  Thus, the central issue in these appeals, qua these

appellants,  is  as  to  whether  the prosecution has been able  to

prove the involvement of the appellants with the aid of Section

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120-B of the IPC.

14) As mentioned above, the prosecution had produced one witness,

Pradeep  Kumar  (PW-7),  who  was  allegedly  the  witness  of

conspiracy.   However,  during  trial,  he  did  not  support  the

prosecution version and was declared hostile.  Therefore, there is

no witness to this conspiracy.  No doubt, such conspiracies are

normally hatched in dark and clandestinely and there may not be

any  eye  witnesses.  We  have  to  see  from  the  circumstantial

evidence  or  other  evidence  produced  as  to  whether  such  a

charge is established or not.  In the present case, the conviction is

recorded by the trial court and upheld by the High Court against

these  appellants  primarily  on  the  basis  of  their  confessional

statements and recovery of the scooter from the house of Indra

Dalal.  Therefore, it is to be examined as to whether conviction

could be sustained on the basis of such statements.

15) Mr.  Sushil  Kumar,  learned  senior  counsel  appearing  for  the

appellants  Indra  Dalal  and  Bijender,  argued  that  these

confessional statements were admittedly recorded after the arrest

of these accused and when these accused were in police custody.

Therefore, such statements were inadmissible having regard to

the provisions of Sections 25 and 26 of the Indian Evidence Act,

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1872. Section 25 of the Evidence Act mandates so, in certain and

unequivocal terms, as is clear from the language thereof.  It reads

as follows:

“25.   Confession  to  police  officer  not  to  be proved. -  No confession made to a police officer shall be proved as against a person accused of any offence.”

Likewise,  Section  26  makes  any  such  statement

inadmissible if given when in police custody.  It reads:

“26.  Confession by accused while in custody of police  not  to  be  proved  against  him.  –  No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate  presence  of  a  Magistrate,  shall  be proved as against such person.

Explanation. – In this section “Magistrate” does not include  the  head  of  a  village  discharging magisterial functions (in the Presidency of Fort St. George or elsewhere), unless such headman is a Magistrate  exercising the powers of  a Magistrate under the Code of Criminal Procedure, 1882.”

16) The philosophy behind the aforesaid provision is acceptance of a

harsh reality that confessions are extorted by the police officers

by  practicing  oppression  and  torture  or  even  inducement  and,

therefore,  they  are  unworthy  of  any  credence.   The  provision

absolutely  excludes  from  evidence  against  the  accused  a

confession made by him to a police officer.  This provision applies

even to those confessions which are made to a police officer who

may not otherwise be acting as such.  If he is a police officer and

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confession was made in his presence, in whatever capacity, the

same becomes inadmissible in evidence.  This is the substantive

rule of law enshrined under this provision and this strict rule has

been  reiterated  countlessly  by  this  Court  as  well  as  the  High

Courts.

17) The word 'confession' has no where been defined.  However, the

courts have resorted to the dictionary meaning and explained that

incriminating statements by the accused to the police suggesting

the inference of  the commission of  the crime would amount to

confession and, therefore, inadmissible under this provision.  It is

also defined to mean a direct acknowledgment of guilt and not the

admission of any incriminating fact, however grave or conclusive.

Section  26  of  the  Evidence  Act  makes  all  those  confessions

inadmissible when they are made by any person, whilst he is in

the custody of a police officer, unless such a confession is made

in the immediate presence of a Magistrate.  Therefore, when a

person is in police custody, the confession made by him even to a

third person, that is other than a police officer, shall also become

inadmissible.

18) In  the  present  case,  as  pointed  out  above,  not  only  the

confessions  were  made  to  a  police  officer,  such  confessional

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statements were made by the appellants after their arrest while

they were in police custody.  In  Bullu Das  v.  State of Bihar1,

while dealing with the confessional statements made by accused

before a police officer, this Court held as under:

“7.  The  confessional  statement,  Ex.5,  stated  to have been made by the appellant was before the police officer in charge of the Godda Town Police Station where the offence was registered in respect of  the  murder  of  Kusum  Devi.   The  FIR  was registered  at  the  police  station  on  8-8-1995  at about  12.30  p.m.   On 9-8-1995,  it  was after  the appellant was arrested and brought before Rakesh Kumar that he recorded the confessional statement of  the  appellant.   Surprisingly,  no  objection  was taken by the defence for admitting it in evidence. The trial court also did not consider whether such a confessional statement is admissible in evidence or not.  The High Court has also not considered this aspect.   The  confessional  statement  was  clearly inadmissible as it was made by an accused before a police officer after the investigation had started.”

19) Notwithstanding the same, the trial court as well as the High Court

had  relied  upon  these  confessions  on  the  basis  of  these

statements, coupled with 'other connected evidence available on

the record', particularly the recovery of the scooter from the old

house  of  accused  Indra  Dalal  and  the  disclosure/confessional

statement (Mark A) made by Jaibir in another case bearing FIR

No.  718  dated  November  30,  2001  registered  under  Sections

420/407/463/471/120-B IPC and Sections 25/54/59 of the Arms

1

(1998) 8 SCC 130

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Act,  1959 registered at Police Station: Civil  Lines,  Hisar, which

has been proved by Inspector Ram Avatar (PW-15).

20) What follows from the above reasoning given by the High Court is

that  the  confessional  statements  were  supported  with  other

evidence.   Though  the  High  Court  has  mentioned  'other

connected  evidence',  what  is  relied  upon  is  the  recovery  of

scooter and the disclosure/confessional statement made by Jaibir

in some other case.  No other evidence is pointed out by the High

Court.  On our specific query to the learned counsel for the State

during the arguments, he also conceded that the only 'connected

evidence available on record' was the recovery of scooter and the

confessional statement (Mark A) made by Jaibir in FIR No. 718

dated  November  30,  2001.   This  approach  of  the  High  Court

relying upon the confessional statements, otherwise inadmissible,

with the aid of 'other connected evidence' is contrary to law.  We

harbour serious doubts about basing criminal punishment on such

an  unapproach,  not  permissible  in  law.   This  conclusion  gets

strengthened  as  we  proceed  to  discuss  the  nuances  of  legal

principles and its application to the factual canvas herein.

21) The  question  is  as  to  whether  these  could  be  taken  into

consideration  to  believe  the  confessional  statements  by  the

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appellants, which were otherwise inadmissible in law.

22) The only portion of the information contained in the confessional

statements that may be proved is provided under Section 27 of

the Evidence Act, which reads as under:

“27.  How  much  of  information  received  from accused may be proved.  - Provided that,  when any  fact  is  deposed  to  as  discovered  in consequence of information received from a person accused of any offence, in the custody of a police officer,  so  much  of  such  information,  whether  it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

23) It is clear that Section 27 is in the form of proviso to Sections 25

and 26 of the Evidence Act .  It makes it clear that so much of

such information which is received from a person accused of any

offence,  in  the  custody  of  a  police  officer,  which  has  led  to

discovery of any fact, may be used against the accused.  Such

information as given must relate distinctly to the fact discovered.

In the present case, the information provided by all the accused/

appellants in the form of confessional statements, has not led to

any discovery.  More starkly put, the recovery of scooter is not

related  to  the  confessional  statements  allegedly  made  by  the

appellants.  This recovery was pursuant to the statement made by

Harish Chander Godara.  It was not on the basis of any disclosure

statements  made  by  these  appellants.   Likewise,  insofar  as

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confessional  statement  (Mark  A)  allegedly  given  by  Jaibir  is

concerned, that is again in another FIR.  We shall  come to its

admissibility  separately.   Therefore,  the  situation  contemplated

under Section 27 of the Evidence Act also does not get attracted.

Even  if  the  scooter  was  recovered  pursuant  to  the  disclosure

statement,  it  would  have made the fact  of  recovery  of  scooter

only, as admissible under Section 27 of the Evidence Act, and it

would  not  make  the  so-called  confessional  statements  of  the

appellants  admissible  which cannot  be held  as proved against

them.

24) At  this  juncture,  let  us  discuss  as  to  whether  the  disclosure/

confessional  statement  (Mark  A)  made  by  appellant  Jaibir  in

another case would be relevant to prove the charge of conspiracy.

It would be pertinent to point out that this statement is made by

Jaibir  much  after  the  incident,  when,  naturally,  the  common

intention had ceased to exist.  On this ground alone it would not

be admissible.   We would like to refer  to  the judgment  of  this

Court  in  Mohd. Khalid  v.  State of  West Bengal2 wherein this

Court held:

“33.   In  view  of  what  we  have  said  about  the confessional  statement  it  is  not  necessary  to  go into  the  question  as  to  whether  the  statement recorded under Section 164 of the Code has to be

2 (2002) 7 SCC 334

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given credence even if the confessional statement has  not  been  recorded  under  Section  15  of  the TADA Act.   However,  we  find  substance  in  the stand  of  learned  counsel  for  the  accused- appellants  that  Section  10  of  the  Evidence  Act which  is  an  exception  to  the  general  rule  while permitting the statement made by one conspirator to  be  admissible  as  against  other  conspirator restricts it to the statements made during the period when the agency subsisted.  In State of Gujarat v. Mohd. Atik [(198) 4 SCC 351] it was held that the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession  or  otherwise,  cannot  fall  within  the ambit of Section 10 of the Evidence Act.  Once the common intention ceased to exist,  any statement made by a former conspirator thereafter cannot be regarded  as  one  made  in  reference  to  their common intention.  In other words, the post-arrest statement made to a police officer, whether it is a confession or otherwise touching his involvement in the conspiracy, would not  fall  within the ambit  of Section 10 of the Evidence Act.”

25) Likewise,  in  Firozuddin  Basheeruddin  &  Ors.  v.  State  of

Kerala3, this Court discussed the law of conspiracy exhaustively

and following passages therefrom would be sufficient to elucidate

the legal position enshrined in Sections 120-A and 120-B of the

IPC:

“25.  Conspiracy is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of  the  usual  doctrines  of  complicity  would  not render that  person liable.   Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission.  The rationale is that

3 (2001) 7 SCC 596

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criminal  acts done in furtherance of  a conspiracy may  be  sufficiently  dependent  upon  the encouragement  and  support  of  the  group  as  a whole to warrant treating each member as a casual agent to each act.  Under this view, which of the conspirators  committed  the  substantive  offence would  be  less  significant  in  determining  the defendant's liability than the fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts.

26.  Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial.  Contrary to the  usual  rule,  in  conspiracy  prosecutions,  any declaration by one conspirator, made in furtherance of  a  conspiracy  and  during  its  pendency,  is admissible  against  each  co-conspirator.   Despite the  unreliability  of  hearsay  evidence,  it  is admissible in conspiracy prosecutions.  Explaining this rule, Judge Hand said:

“Such  declarations  are  admitted  upon  no doctrine  of  the  law  of  evidence,  but  of  the substantive  law  of  crime.   When  men  enter into  an agreement  for  an unlawful  end,  they become ad hoc agents for  one another, and have made 'a partnership in crime'.  What one does  pursuant  to  their  common purpose,  all do,  and  as  declarations  may  be  such  acts, they are competent against all.  (Van Riper v. United  States,  13  F  2d  961,  967  (2d  Cir 1926)).”

27.   Thus  conspirators  are  liable  on  an  agency theory  for  statements  of  co-conspirators,  just  as they are for the overt acts and crimes committed by their confreres.”

26) The Court also noted the earlier judgment in the case of State v.

Nalini4 wherein the principles governing the law of conspiracy had

been summarized.  Those principles are reproduced in para 32 of

the judgment.  For our purposes, principle No.2 is reproduced as

4 (1999) 5 SCC 253

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under:

“2.  Acts subsequent to the achieving of the 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.”

Thus, the alleged disclosure/confessional statement (Mark

A) made by Jaibir in another case would be of no consequence.

27) With this, we now discuss the evidentiary value of the recovery of

scooter.

28) Sub-Inspector Ram Chander, who was the Investigating Officer

and who appeared as PW-17, deposed in his statement that on

July 13, 2001, the scooter in question, which was allegedly used

in the offence, was recovered from the house of Indra Dalal.  It

was parked in verandah and the same was taken into possession

vide recovery memo Exhibit PD.  It is important to note that on

July  13,  2001,  appellant  Indra  Dalal  was  in  jail,  as  she  was

arrested  on  June  02,  2001,  when  the  so-called  recovery  was

made.   Recovery  was,  thus,  made  in  her  absence.   Harish

Chander Godara, brother of the deceased, appeared as PW-2.

According to him, he was at  the roof of  the house at the time

when  a  boy  came  and  shot  at  his  brother.   He  rushed  from

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upstairs to the ground floor and saw the boy  leaving  on scooter

towards the town.   He noted down the number of  the scooter

which was HR 20G 1102 and was of cream colour.  He further

stated that on July 13, 2001, on seeing the police vehicle near

bus  stand,  he  went  to  the  Police  to  enquire  about  the  case.

During  that  time,  one  informant  informed  the  police  that  one

scooter bearing No. HR 20G 1102 was standing in the store of the

old house of Indra Dalal.  It would be of interest to point out that

the Investigating Officer (PW-17) had earlier gone to the house of

Indra Dalal  immediately after  the incident,  but  did not  find any

scooter.  If the registration number of the scooter was given by

PW-2 during investigation and the Investigating Officer had visited

the house of Indra Dalal, how he could not find the scooter parked

there with the same number on that date.  All these facts cast a

shadow of  doubt  on  the  alleged  recovery  of  scooter  from the

house of appellant Indra Dalal.

29) Appellant Jaibir has denied that the scooter in question belonged

to  him.   In  order  to  prove  his  ownership,  the  prosecution had

produced Gulab Singh (PW-18), Registration Clerk with Regional

Transport Office.  He produced on record application (Exhibit PZ)

moved by the police officer  and report  (Exhibit  PZ/1) made by

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Pavan Kumar, Clerk working in the Regional Transport Office.  No

documents have been produced to show the ownership of Jaibir.

Only the report prepared by Pavan Kumar, Clerk, allegedly on the

basis  of  the  record,  is  produced.  That  cannot  partake  the

character  of  primary  evidence.  Moreover,  in  the  cross-

examination of PW-18, he has accepted that there is cutting in the

relevant entry of ownership.  He also admitted that he had not

brought  the  forms/applications  for  change  of  ownership  of  the

scooter in question.  He further mentioned that as per the record,

the original  registration of  the scooter was in the name of  one

Vipul  Kaushal,  s/o.  Prithi  Singh,  resident  of  Hisar.  In  such  a

circumstance, necessary evidence was required to prove how the

ownership changed hands and came to be recorded in the name

of  Jaibir.   No  such  evidence  has  been  produced.   We  are,

therefore,  of  the opinion that  there is  no sufficient  evidence to

prove the ownership of the scooter in the name of Jaibir.   

30) Aforesaid discussion leads us to conclude that the entire bucket

of evidence is either inadmissible putting the roadblock creating

by the Evidence Act  or  unbelievable/untrustworthy.  For all  the

aforesaid reasons, we are of the view that the prosecution has

miserably failed to prove, beyond reasonable doubt, the charge of

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conspiracy against these appellants with the aid of Section 120-B

of IPC.  As a result, the appeals are allowed and the impugned

judgment and sentence are, accordingly, set aside.  During the

pendency of these appeals, sentence of the appellant Indra Dalal

had been suspended.  Her bail  bonds shall,  accordingly, stand

discharged.  The other two appellants, namely, Bijender @ Vijay

and Jaibir, shall be released from jail  forthwith, unless they are

required in any other case.

.............................................J. (A.K. SIKRI)

.............................................J. (UDAY UMESH LALIT)

NEW DELHI; MAY 29, 2015.

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