REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.663 OF 2010  

Mohan Singh .....Appellant(s)

- Versus -

State of Bihar ....Respondent(s)

J U D G M E N T

GANGULY, J.

1. This  criminal  appeal  has  been  preferred  from  the  

judgment of the High Court in Criminal Appeal (DB)  

No. 1338 of 2007, dated 3.9.2008, whereby the High  

Court upheld the judgment and order of conviction  

passed  by  the  learned  Additional  Sessions  Judge,  

Fast  Track  Court–IV,  Motihari,  East  Champaran  in  

Sessions Trial No. 101/16 of 2006/2007. The learned  

Sessions Court held the appellant guilty of criminal  

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conspiracy for murder under sections 120B of IPC and  

of extortion under section 387 of IPC and sentenced  

him to undergo rigorous imprisonment for life and  

was  fined  for  Rs.25,000/-  for  the  offence  of  

criminal conspiracy for murder under section 120B,  

in default of which he was to further undergo simple  

imprisonment for 1 year. He was further sentenced  

for seven years rigorous imprisonment under section  

387  IPC  and  was  fined  Rs.5,000/-,  in  default  of  

which to undergo simple imprisonment for six months.

2. The facts of the case are that the informant Shri  

Vikas Kumar Jha gave a fardbeyan to the effect that  

at about 5.00 P.M. on 23.7.2005, he had received a  

call on his telephone number 06252-239727, inquiring  

about  his  elder  brother  Shri  Anil  Kumar  Jha.  The  

informant stated before the police that his elder  

brother, the owner of a medical store, on the said  

date had been out of town. He submitted that he had  

communicated  the  same  to  the  caller.  Upon  such  

reply, the caller disclosed himself as Mohan Singh,  

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the  appellant  herein,  and  asked  the  informant  to  

send him Rs.50,000/-. The informant submitted that  

he had similar conversations with the caller three  

to four times in the past. However, he then received  

another  telephone  call  on  25.7.2005  from  a  cell  

phone number 9835273765. The caller threatened him  

that  since  the  demand  of  money  had  not  been  

fulfilled, the informant should be ready to face the  

consequences.  

3. Upon his elder brother’s return, the informant had  

narrated  the  events  to  him.  However,  his  elder  

brother did not take the threat seriously.  

4. On 3.8.2005, at about 9.00 P.M. when the informant  

was at a place called Balua Chowk, he had received a  

call from his driver Shri Dhanai Yadav on his cell  

phone to the effect that informant’s elder brother  

and their father, Shri Sureshwar Jha, had been shot  

at while they were in their medical store, and that  

both of them had been rushed to Sadar Hospital. On  3

reaching Sadar Hospital, the informant saw the dead  

body of his elder brother. He was intimated by the  

people  there  that  his  father  had  been  shifted  to  

another  hospital  called  Rahman’s  Nursing  Home.  He  

was also told that the shots had been fired by one  

Laxmi Singh and Niraj Singh. Having heard this, the  

informant rushed to Rahman’s Nursing Home, where his  

injured  father  told  him  that  while  Niraj  Singh  

cleared the medical store of all the other people,  

Laxmi Singh had fired shots at him and Anil Kumar  

Jha with an A.K. 47 rifle, before fleeing from the  

scene.  After  narrating  such  events,  his  father  

became unconscious.

5. The  informant  further  stated  that  his  family  had  

actually known the appellant and Laxmi Singh from an  

earlier incident in 2004, when on the occasion of  

Durga Puja, the two had sent a messenger to Anil  

Kumar Jha’s  medical store, demanding Rs.50,000/- or  

to face death in the alternative. He submitted that  

pursuant  to  this,  they  had  preferred  a  complaint  

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before  the  police,  and  that  the  matter  was  sub  

judice.  He further stated that he had actually met  

the appellant once prior to the telephone calls when  

the latter had asked for money, as contribution for  

celebrations of Sarswati Puja and Durga Puja. The  

informant thus stated that his father and brother  

had been attacked by Laxmi Singh and Niraj Singh at  

the instance of Mohan Singh for not having paid the  

extortion  money.  The  informant  said  so  on  the  

identification of the voice of the telephone caller  

as  that  of  the  appellant.  He,  however,  did  not  

follow up the calls made on 23rd and 25th of July,  

2005 either with the appellant in person, or with  

the authorities of Motihari jail where the appellant  

was in fact lodged at the time of the calls. These  

statements of the informant were supported by the  

informant’s  father  Sureshwar  Jha,  and  his  other  

brother Sunil Kumar Jha.

6. On the basis of this fardbeyan, Motihari Town Police  

Station Case No.246/2005 was registered on 3.8.2005  

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against  the  appellant  Mohan  Singh,  Laxmi  Singh,  

Niraj  Singh  and  others.  The  investigating  officer  

submitted that he had known the appellant to have as  

many as seven criminal cases for murder, kidnapping  

for ransom and loot, pending against him. However,  

he submitted that he had received the phone number  

attributed to the appellant only from the informant.  

Though he submitted that as many as nine calls had  

been made between the phone numbers attributed to  

the  appellant  and  Laxmi  Singh,  and  that  he  had  

retrieved the records of calls made by the number  

attributed  to  the  appellant  and  that  of  the  

informant, he had not been able to establish as to  

who were the registered owners of the SIM cards.  

7. The learned Sessions Court in the course of trial  

took  note  of  the  fact  that  identities  of  the  

registered owners of the said SIM cards had not been  

established by the police, but it did not give much  

emphasis on this on the grounds that the informant’s  

family had known the appellant and Laxmi Singh long  

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enough and had known about their common intention to  

extort money. On these findings the learned Sessions  

Court found the appellant guilty.

8. On  appeal  the  learned  Division  Bench  upheld  the  

conviction  inter  alia  on  the  grounds  that  the  

informant  himself  and  his  family  had  known  the  

appellant and Laxmi Singh from before.

9. Even though the High Court in the impugned judgment  

held that identification by voice and gait is risky,  

but  in  a  case  where  the  witness  identifying  the  

voice had previous acquaintance with the caller, the  

accused  in  this  case,  such  identification  can  be  

relied upon. The High Court also held that direct  

evidence  in  a  conspiracy  is  difficult  to  be  

obtained. The case of conspiracy has to be inferred  

from  the  conduct  of  the  parties.  The  High  Court  

relied upon the evidence of the informant, PW.4 and  

on  Exts.  9  and  10  where  the  conversation  between  

PW.4 and the appellant was recorded. The High Court  7

also relied upon the evidence of PW.1 Dhanai Yadav,  

who  was  sitting  inside  the  medical  store  of  the  

deceased Anil Kumar Jha at the time of the incident.  

PW.1 was a witness to the incident of Laxmi Singh  

firing  shots  at  the  deceased  and  his  father  

Sureshwar Jha. The High Court also relied upon the  

evidence of PW.2 Surehswar Jha, the injured witness.  

The High Court found that the evidence of PW.2 and 4  

is  unblemished  and  their  evidence  cannot  be  

discarded.  The  High  Court  also  relied  upon  the  

evidence of PW.4 as having identified the voice of  

the appellant.

10. On appreciation of the aforesaid evidence, the High  

Court came to the conclusion that Mohan Singh was  

performing  one  part  of  the  act,  and  Laxmi  Singh  

performed another part, both performing their parts  

of the same act. Thus the case of conspiracy was  

made out.  

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11. Assailing such  finding of the Sessions Court which  

has  been  affirmed  by  the  High  Court,  the  learned  

Counsel appearing for the appellant argued that the  

appellant  cannot  be  convicted  under  section  120-B  

and given the sentence of rigorous imprisonment for  

life  in  view  of  the  charges  framed  against  the  

appellant.   

12. In order to appreciate this argument, the charges  

framed against the appellant are set out below:

“FIRST  -  That  you,  on  or  about  the  day of     at  about or during the period  between 23.7.05 & 3.8.05 agreed with Laxmi  Narain Singh, Niraj Singh & Pankaj Singh  to commit the murder of Anil Jha, in the  event of his not fulfilling your demand,  as extortion of a sum of Rs.50,000/- and  besides the above said agreement you did  telephone from Motihari Jail to Vikash Jha  in  pursuance  of  the  said  agreement  extending threat of dire consequences if  the demand was not met and then on 3.8.05  the  offence  of  murder  punishable  with  death  was  committed  by  your  companions  Laxmi Narain Singh and Niraj Singh and you  thereby committed the offence of criminal  conspiracy  to  commit  murder  of  Anil  Jha  and  seriously  injured  Sureshwar  Jha  and  thereby  committed  an  offence  punishable  under  Section  120-B  of  the  Indian  Penal  Code, and within my cognizance.  

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SECONDLY - That you, during the period  between 23.7.05 & 3.8.05 at Hospital gate  Motihari  P.S.,  Motihari  Town  Dist.  East  Champaran, Put Vikash Jha in fear of death  and grievous hurt to him and his family  members  in  order  to  commit  extortion  on  telephone and thereby committed an offence  punishable under Section 387 of the Indian  Penal Code, and within my cognizance and I  hereby direct that you be tried by me on  the said the charge.

Charges were read over and explained  in Hindi to the accused and the accused  pleaded not guilty as charged. Let him be  tried.”   

  13. Admittedly,  no  complaint  of  any  prejudice  by  the  

appellant was raised either before the trial Court  

or in the High Court or in the course of examination  

under Section 313 Cr.P.C.

14. These points have been raised before this Court for  

the first time. In a case where points relating to  

errors in framing of charge or even misjoinder of  

charge are raised before this Court for the first  

time, such grievances are not normally considered by  

this  Court.   Reference  in  this  connection  may  be  

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made to the decision of a three-Judge Bench of this  

Court  in  the  case  of  Mangal  Singh  and  others v.  State of Madhya Bharat reported in AIR 1957 SC 199.  Justice Imam delivering a unanimous opinion of the  

Court held in paragraph 5 at page 201 of the report  

as follows:-

“It was, however, urged that there had  been misjoinder of charges. This point does  not  seem  to  have  been  urged  in  the  High  Court because there is no reference to it in  the judgment of that Court and does not seem  to  have  been  taken  in  the  Petition  for  special  leave.  The  appellants  cannot,  therefore,  be  permitted  to  raise  this  question at this stage.”

15. However, instead of refusing to consider the said  

grievance on the ground of not having been raised at  

an earlier stage of the proceeding, we propose to  

examine the same on its merits.

16. The  purpose  of  framing  a  charge  is  to  give  

intimation to the accused of clear, unambiguous and  

precise notice of the nature of accusation that the  

accused is called upon to meet in the course of a  

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trial. (See decision of a four-Judge Bench of this  

Court  in  V.C.  Shukla v.  State  Through  C.B.I.,  reported in 1980 Supplementary SCC 92 at page 150  

and  paragraph  110  of  the  report).  Justice  Desai  

delivering a concurring opinion, opined as above.

17. But the question is how to interpret the words in a  

charge?  In  this  connection,  we  may  refer  to  the  

provision of Section 214 of the Code. Section 214 of  

the Code is set out below:

“214. Words in charge taken in sense of  law under which offence is punishable. In  every charge words used in describing an  offence shall be deemed to have been used  in the sense attached to them respectively  by  the  law  under  which  such  offence  is  punishable.“

18.The other relevant provisions relating to charge may  

be noticed as under:

“211. Contents  of  charge.-  (1)  Every  charge  under  this  Code  shall  state  the  offence with which the accused is charged.

(2) If the law which creates the offence  gives  it  any  specific  name,  the  offence  

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may  be  described  in  the  charge  by  that  name only.

(3) If the law which creates the offence  does  not  give  it  any  specific  name,  so  much of the definition of the offence must  be stated as to give the accused notice of  the matter with which he is charged.

(4) The law and section of the law against  which  the  offence  is  said  to  have  been  committed  shall  be  mentioned  in  the  charge.

(5) The fact that the charge is made is  equivalent to a statement that every legal  condition  required  by  law  to  constitute  the offence charged was fulfilled in the  particular case.

(6) The  charge  shall  be  written  in  the  language of the Court.

(7) If the accused, having been previously  convicted  of  any  offence,  is  liable,  by  reason  of  such  previous  conviction,  to  enhanced punishment, or to punishment of a  different kind, for a subsequent offence,  and it is intended to prove such previous  conviction  for  the  purpose  of  affecting  the punishment which the Court may think  fit to award for the subsequent offence,  the fact date and place of the previous  conviction shall be stated in the charge;  and  if  such  statement  has  been  omitted,  the Court may add it at any time before  sentence is passed.

215.Effect of errors. No error in stating  either  the  offence  or  the  particulars  required to be stated in the charge, and  no omission to state the offence or those  particulars,  shall  be  regarded  at  any  stage of the case as material, unless the  

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accused was in fact misled by such error  or  omission,  and  it  has  occasioned  a  failure of justice.

464.  Effect  of  omission  to  frame,  or  absence of, or error in, charge. (1) No  finding sentence or order by a Court of  competent  jurisdiction  shall  be  deemed  invalid  merely  on  the  ground  that  no  charge was framed or on the ground of any  error,  omission  or  irregularity  in  the  charge  including  any  misjoinder  of  charges,  unless,  in  the  opinion  of  the  Court of appeal, confirmation or revision,  a  failure  of  justice  has  in  fact  been  occasioned thereby.  

(2) If the Court of appeal, confirmation  or revision is of opinion that a failure  of justice has in fact been occasioned, it  may-  

(a)  in  the  case  of  an  omission  to  frame  a  charge,  order  that  a  charge  be  framed  and  that  the  trial  be  recommenced  from  the  point  immediately  after  the  framing of the charge;  

(b) in the case of an error, omission  or  irregularity  in  the  charge,  direct a new trial to be had upon  a  charge  framed  in  whatever  manner it thinks fit:   

Provided  that  if  the  Court  is  of  opinion  that  the  facts  of  the  case  are  such  that  no  valid  charge  could  be  preferred against the accused in respect  of the facts proved, it shall quash the  conviction.”

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19. While  examining  the  aforesaid  provisions,  we  may  

keep  in  mind  the  principles  laid  down  by  Justice  

Vivian Bose in  Willie (William) Slaney v.  State of  Madhya  Pradesh reported  in  (1955)  2  SCR  1140.  At  page  1165  of  the  report,  the  learned  judge  

observed:-  

“We  see  no  reason  for  straining  at  the  meaning  of  these  plain  and  emphatic  provisions unless ritual and form are to  be regarded as of the essence in criminal  trials. We are unable to find any magic or  charm in the ritual of a charge. It is the  substance of these provisions that count  and  not  their  outward  form.  To  hold  otherwise  is  only  to  provide  avenues  of  escape  for  the  guilty  and  afford  no  protection to the innocent.”

20. The aforesaid observation of Justice Vivian Bose in  

William Slaney (supra) has been expressly approved  subsequently by this Court in V.C. Shukla (supra).  

21. Reference  in  this  connection  may  be  made  to  the  

decision of this Court in the case of Tulsi Ram and  others v.  State  of  Uttar  Pradesh reported  in  AIR  

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1963 SC 666.  In that case in paragraph 12 this  

Court was considering these aspects of the matter  

and made it clear that a complaint about the charge  

was  never  raised  at  any  earlier  stage  and  the  

learned  Judges  came  to  the  conclusion  that  the  

charge  was  fully  understood  by  the  appellants  in  

that  case  and  they  never  complained  at  the  

appropriate  stage  that  they  were  confused  or  

bewildered by the charge.  The said thing is true  

here.  Therefore, the Court refused to accept any  

grievance relating to error in the framing of the  

charge.   

22. Subsequently, in the case of State of Andhra Pradesh  v.  Cheemalapati Ganeswara Rao and another reported  in AIR 1963 SC 1850, this Court also had to consider  

a similar grievance.  Both in the case of Tulsi Ram  (supra) as also in the case of Cheemalapati (supra)  the charges were of conspiracy.  The same is also a  

charge  in  the  instant  case.   Repelling  the  said  

grievance, the learned Judges held that the object  

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in saying what has been set out in the first charge  

was only to give notice to the accused as to the  

ambit of the conspiracy to which they will have to  

answer and nothing more.  This Court held that even  

assuming for a moment that the charge is cumbersome  

but in the absence of any objection at the proper  

time and in the absence of any material from which  

the Court can infer prejudice, such grievances are  

precluded by reason of provision of Section 225 of  

the Cr.P.C.  Under the present Code it is Section  

215 which has been quoted above.   

23. Reference in this connection may also be made in the  

decision  of  this  Court  in  Rawalpenta  Venkalu  and  another v.  The State of Hyderabad reported in AIR  1956 SC 171 at para 10 page 174 of the report.  The  

learned Judges came to the conclusion that although  

Section 34 is not added to Section 302, the accused  

had clear notice that they were being charged with  

the  offence  of  committing  murder  in  pursuance  of  

their common intention.  Therefore, the omission to  

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mention  Section  34  in  the  charge  has  only  an  

academic significance and has not in any way misled  

the accused.  In the instant case the omission of  

charge of Section 302 has not in any way misled the  

accused inasmuch as it is made very clear that in  

the charge that he agreed with the others to commit  

the  murder  of  Anil  Jha.   Following  the  aforesaid  

ratio there is no doubt that in the instant case  

from the evidence led by the prosecution the charge  

of  murder  has  been  brought  home  against  the  

appellant.   

24. In  K. Prema S. Rao and another v.  Yadla Srinivasa  Rao and others reported in (2003) 1 SCC 217 this  Court held that though the charge specifically under  

Section  306  IPC  was  not  framed  but  all  the  

ingredients constituting the offence were mentioned  

in the statement of charges and in paragraph 22 at  

page 226 of the report, a three-Judge Bench of this  

Court held that mere omission or defect in framing  

of charge does not disable the criminal court from  

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convicting  the  accused  for  the  offence  which  is  

found to have been proved on the evidence on record.  

The learned Judges  held that provisions of Section  

221  Cr.P.C.  takes  care  of  such  a  situation  and  

safeguards  the  powers  of  the  criminal  court  to  

convict an accused for an offence with which he is  

not charged although on facts found in evidence he  

could  have  been  charged  with  such  offence.   The  

learned Judges have also referred to Section 215 of  

the  Cr.P.C.,  set  out  above,  in  support  of  their  

contention.

25. Even in the case of Dalbir Singh v. State of U.P.,  reported in (2004) 5 SCC 334, a three-Judge Bench of  

this Court held that in view of Section 464 Cr.P.C.  

it is possible for the appellate or revisional court  

to convict the accused for an offence for which no  

charge was framed unless the court is of the opinion  

that  the  failure  of  justice  will  occasion  in  the  

process.   The learned Judges further explained that  

in  order  to  judge  whether  there  is  a  failure  of  

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justice the Court has to examine whether the accused  

was aware of the basic ingredients of the offence  

for which he is being convicted and whether the main  

facts  sought  to  be  established  against  him  were  

explained to him clearly and whether he got a fair  

chance to defend himself.  If we follow these tests,  

we have no hesitation that in the instant case the  

accused had clear notice of what was alleged against  

him  and  he  had  adequate  opportunity  of  defending  

himself against what was alleged against him.   

26. In  State  of  Uttar  Pradesh v.  Paras  Nath  Singh  reported in (2009) 6 SCC 372 this Court, setting out  

Section 464 of Cr.P.C., further held that whether  

there is failure of justice or not has to be proved  

by  the  accused.   In  the  instant  case  no  such  

argument  was  ever  made  before  the  Trial  Court  or  

even in the High Court and we are satisfied from the  

materials on record that no failure of justice has  

been  occasioned  in  any  way  nor  has  the  appellant  

suffered any prejudice.   

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27. In Annareddy Sambasiva Reddy and others v.  State of  Andhra Pradesh reported in (2009) 12 SCC 546 this  court  again  had  occasion  to  deal  with  the  same  

question and referred to Section 464 of Cr.P.C. In  

paragraph 55 at page 567 of the report, this Court  

came to the conclusion that if the ingredients of  

the section charged with are obvious and implicit,  

conviction  under  such  head  can  be  sustained  

irrespective of the fact whether the said section  

has been mentioned or not in the charge. The basic  

question is one of prejudice.  

28. In view of such consistent opinion of this Court, we  

are of the view that no prejudice has been caused to  

the  appellant  for  non-mentioning  of  Section  302  

I.P.C. in the charge since all the ingredients of  

the offence were disclosed.  The appellant had full  

notice and had ample opportunity to defend himself  

against  the  same  and  at  no  earlier  stage  of  the  

proceedings, the appellant had raised any grievance.  

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Apart  from  that,  on  overall  consideration  of  the  

facts and circumstances of this case we do not find  

that the appellant suffered any prejudice nor has  

there been any failure of justice.  

29. In  the  instant  case,  in  the  charge  it  has  been  

clearly  mentioned  that  the  accused-appellant  has  

committed the murder of Anil Jha. By mentioning that  

the accused has committed the murder of Anil Jha all  

the ingredients of the charge have been mentioned  

and the requirement of Section 211, sub-section (2)  

has been complied with.  Therefore, we do not find  

any  substance  in  the  aforesaid  grievance  of  the  

appellant.   

30. Now the only other point on which argument has been  

made  on  behalf  of  the  appellant  is  that  in  the  

instant case appellant was in jail at the time of  

the  commission  of  the  offence.   It  has  been  

submitted that his involvement in the whole episode  

has been argued for only on the evidence of PW.4 who  22

is said to have identified his voice on the basis of  

some telephone calls.   

31. These are essentially questions of fact and after a  

concurrent finding by two courts normally this Court  

in  an  appeal  against  such  finding  is  slow  and  

circumspect to upset such finding unless this Court  

finds the finding to be perverse.   

32. However, on the legal issue one thing is clear that  

identification by voice has to be considered by this  

Court carefully and on this aspect some guidelines  

have been laid down by this Court in the case of  

Kirpal Singh v. The State of Uttar Pradesh reported  in AIR 1965 SC 712. In dealing with the question of  

voice identification, construing the provisions of  

Section  9  of  the  Indian  Evidence  Act,  this  Court  

held:

“…It  is  true  that  the  evidence  about  identification of a person by the timbre of  his voice depending upon subtle variations  

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in the overtones when the person recognising  is not familiar with the person recognised  may be some-what risky in a criminal trial.  But the appellant was intimately known to  Rakkha Singh and for more than a fortnight  before the date of the offence he had met  the  appellant  on  several  occasions  in  connection  with  the  dispute  about  the  sugarcane crop….”  

  (para 4, page 714 of the report)

33. Relying on such identification by voice this Court  

held in Kripal Singh (supra) that it cannot come to  the  conclusion  that  the  identification  of  the  

assailant  by  Rakkha  Singh  was  so  improbable  that  

this Court would be justified in disagreeing with  

the opinion of the Court which saw the witness and  

formed its opinion as to its credibility and also of  

the High Court which considered the evidence against  

the appellant and accepted the testimony (see para  

4, page 714 of the report).  The same principles  

will  apply  here.   PW.4  in  his  evidence  clearly  

stated  that  the  appellant  gave  him  a  phone  call  

asking for money on 23.7.2005 and again on 25.7.2005  

when  the  appellant  threatened  him  of  dire  

consequences for not paying the money.  PW.4 also  

stated  in  his  evidence  that  he  got  an  ID  caller  

installed in his phone and he informed the police of  24

the  phone  number  of  the  caller  which  is  of  the  

appellant.  PW.4 also stated in his evidence that he  

had  direct  talks  with  the  appellant  at  hospital  

chawk prior to the incident when he used to demand  

money from him and other shopkeepers at the time of  

Durga Puja and Saraswati Puja.  PW.4 specifically  

stated  that  he  can  identify  the  voice  of  Mohan  

Singh.  The first I.O. of the case (PW.6) in his  

evidence  also  stated  that  during  investigation  

mobile No.9835273765 of Mohan Singh was found and  

mobile No.9431428630 of Laxmi Singh was also found.  

P.W. 8, the other I.O. of the case stated that on  

23.7.2005, four calls were made between the mobile  

phones of Laxmi Singh and Mohan Singh. Then six more  

calls were made by Laxmi Singh to Mohan Singh on  

3.08.2005, i.e. on the day of the incident itself.  

The  printout  details  of  these  phone  calls  were  

produced before the Court. So both the Trial Court  

and High Court considered the evidence of PW.6 and  

PW.8  who  were  the  investigating  officers  in  this  

case,  apart  from  the  evidence  of  PW.4,  other  

witnesses and the materials on record before coming  

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to  the  conclusion.   The  fact  that  the  name  of  

registered allottees the SIM cards of these mobile  

phones could not be traced is not relevant in this  

connection.   This  Court  finds  that  from  para  19  

onwards  of  the  judgment  by  the  High  Court  these  

aspects have received due consideration.   

34. The learned counsel for the appellant relied on some  

judgments in support of his contention that in the  

facts of this case voice identification cannot be  

accepted.  The learned counsel  relied on a judgment  

of this Court in the case of Nilesh Dinkar Paradkar  v.  State  of  Maharashtra reported  in  (2011)  4  SCC  143.  In that case the voice in the telephone was  

tapped and then the voice was recorded in a cassette  

and  the  cassette  was  then  played  to  identify  the  

voice.  Therefore, there is a substantial factual  

difference  with  the  facts  in  the  case  of  Nilesh  (supra) and the facts of the present case.  Apart  

from  that  in  Nilesh  (supra),  the  High  Court  acquitted A1 to A4 and this Court finds that the  

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evidence against Nilesh was identical.  Therefore,  

this  Court  held  that  the  conclusion  of  the  High  

court  in  acquitting  Accused  1,  2,  3  and  4  has  

virtually  “destroyed  the  entire  substratum  of  the  

prosecution  case”  (see  para  28  of  the  report).  

Since  that  decision  was  passed  on  tape  recorded  

version of the voice, the principles decided in that  

case,  even  though  are  unexceptionable,  cannot  be  

applied to the present case.  

35. The other case on which reliance was placed by the  

learned counsel for the appellant was in the case of  

Inspector of Police, Tamil Nadu v. Palanisamy alias  Selvan reported in (2008) 14 SCC 495.  In that case  this Court held that identification from voice is  

possible but in that case no evidence was adduced to  

show that witnesses were closely acquainted with the  

accused to identify him from his voice and that too  

from  very  short  replies.   Therefore,  this  case  

factually  stands  on  a  different  footing.   In  the  

instant case the evidence of PW.4 that he knows the  

27

voice of the appellant was not challenged nor was it  

challenged  that  the  mobile  no.  9835273765  is  not  

that of the appellant.  Nor has the evidence of PW.8  

been challenged that on 3.8.2005 eight calls were  

recorded between the mobiles of the appellant and  

his conspirator Laxmi Singh.   

36. The next decision on which reliance was placed by  

the learned counsel for the appellant was rendered  

in the case of Saju v. State of Kerala reported in  (2001)  1  SCC  378.   In  Saju (supra)  this  Court  explained  the  principles  of  Section  10  of  the  

Evidence Act, as follows:-

“Evidene  Act,  1872  –  Sec.10  –  Condition  for applicability of  

Act or action of one of the accused cannot  be  used  as  evidence  against  the  other.  However, an exception has been carved out under  Section 10 of the Evidence Act in the case of  conspiracy.  To attract the applicability of  Section 10 of the Evidence Act, the court must  have reasonable ground to believe that two or  more  persons  had  conspired  together  for  committing an offence.  It is only then that  the evidence of action or statement made by one  of  the  accused  could  be  used  as  evidence  against the other.”

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37. If we apply the aforesaid principles to the facts of  

the present case it is clear that there is enough  

evidence  to  furnish  reasonable  ground  to  believe  

that  both  the  appellant  and  Laxmi  Singh  had  

conspired  together  for  committing  the  offence.  

Therefore, the principles of this case do not help  

the appellant.

38. Learned counsel for the appellant also relied upon  

the decision of this Court in the case of  Yogesh  alias Sachin Jagdish Joshi v.  State of Maharashtra  reported in (2008) 10 SCC 394. In paragraph 25 at  

page  402  of  the  report  this  Court  laid  down  the  

following principles:-

“Thus, it is manifest that the meeting of  minds of two or more persons for doing an  illegal act or an act by illegal means is  sine qua non of the criminal conspiracy but  it  may  not  be  possible  to  prove  the  agreement  between  them  by  direct  proof.  Nevertheless,  existence  of  the  conspiracy  and its objective can be inferred from the  surrounding circumstances and the conduct of  the  accused.  But  the  incriminating  circumstances must form a chain of events  from which a conclusion about the guilt of  

29

the  accused  could  be  drawn.  It  is  well  settled that an offence of conspiracy is a  substantive  offence  and  renders  the  mere  agreement to commit an offence punishable,  even  if  an  offence  does  not  take  place  pursuant to the illegal agreement.”

39. In  view  of  the  aforesaid  principles,  this  Court  

finds  that  no  assistance  can  be  drawn  from  the  

aforesaid decision to the case of the appellant in  

this case.

40. Reliance  was  also  placed  on  the  decision  of  this  

Court in the case of S. Arul Raja v. State of Tamil  Nadu reported in (2010) 8 SCC 233.  In that case  this Court held that mere circumstantial evidence to  

prove  the  involvement  of  the  accused  is  not  

sufficient  to  meet  the  requirements  of  criminal  

conspiracy and meeting of minds to form a criminal  

conspiracy has to be proved by placing substantive  

evidence.  In the instant case, as discussed above,  

substantive evidence was placed to prove the meeting  

of minds between the appellant and Laxmi Singh about  

the murder of the victim.  In evidence which has  

30

been noted hereinabove in the earlier part of the  

judgment it clearly shows that there is substantial  

piece of evidence to prove criminal conspiracy.   

41. Reliance was also placed by the learned counsel for  

the appellant on the decision of this Court in the  

case  of  Mohd.  Khalid v.  State  of  West  Bengal  reported in (2002) 7 SCC 334.  In that case, this  

court held that offence of conspiracy can be proved  

by  either  direct  or  circumstantial  evidence.   In  

paragraph 24 at page 354 of the report the following  

observations have been made:-

“Conspiracies are not hatched in the open,  by  their  nature,  they  are  secretly  planned,  they  can  be  proved  even  by  circumstantial  evidence, the lack of direct evidence relating  to conspiracy has no consequence.”

42. For the reasons discussed above, this Court does not  

find that there is any reason to interfere with the  

concurrent finding in the instant case.  This Court,  

therefore, does not find any reason to take a view  

different from the one taken by the High Court.  31

43. The appeal is dismissed and the conviction of the  

appellant  under  Section  120B  of  IPC  for  life  

imprisonment is affirmed.  

.......................J. (ASOK KUMAR GANGULY)

.......................J. New Delhi (DEEPAK VERMA) August 26, 2011

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