The Centre Bureau of Investigation vs Yogavalli

Dr. Sambuddha Chakrabarti, J.—This appeal at the instance of the prosecution is directed against the judgement and order of acquittal, dated December, 11, 2012 passed by the learned sessions judge, Andaman & Nicobar islands, Port Blair, in Sessions Case No. 020 of 2000 (Ss. Trial No 13 of September, 2002)

The case has its genesis in the First Information Report, lodged on March 26, 1997 by K.M. Hanif. The de facto complainant alleged that Rashida Banu was the wife of his brother Khalil. She had her share in a piece of land. The accused Arunachalam once used to run a pan shop on that piece of land which was subsequently dismantled by the order of Municipal Council. That was the beginning of a dispute between Rashida and S.P. Arunachalam and his son Yogavalli who tried to construct a house forcibly on that plot of land which was stopped by Rashida Banu. On March 24-25, 1997 at around 2.30 a.m. Arunachalam, Yogavalli, Arumugam, a driver, Mr. Basu, Navamani and eight or ten others arrived at the spot in a car and a taxi belonging to one Raghupati with various construction materials. Rashida Banu and the de facto complainant asked them not to construct any house. A quarrel ensued. Some habitants of the slum gathered around and the intruders had all escaped.

The First Information Report further recited that on March 26, 1997 in the evening at around 4.30 p.m. Rashida Banu came along with the de facto complainant to meet the Deputy Commissioner at the latter''s office. At about 5.30 p.m. when they were returning home by a scooter a taxi started following them. At around 5.44 p.m. the taxi driver speedily overtook the scooter and hit it on the back side very heavily. The de facto complainant fell down. The taxi driver snatched Rashida Banu who was sitting at the back of the scooter. He noted the number of the taxi. Raghupati was driving the taxi. A boy called Ravi was also inside the cab. When some people arrived both of them left the taxi and escaped. Rashida Banu was lying in a state of drowsiness in a pool of blood near the taxi. She received serious injuries in her head and different parts of her body. She was taken to the hospital where she was declared dead. The de facto complainant also received injuries at various places.

On the basis of this complaint investigation was taken up. Subsequently Central Bureau of Investigation investigated into the matter and submitted a charge sheet on December 31, 1998 under sections 302/ 307/ 120B of the Indian Penal Code. The case was subsequently committed to the court of sessions. At the court of sessions charges were framed against the accused persons, viz A. Ravi, P. Raghupati, R. Yogavalli, M. Arumugam and M. Navamani under the above provisions of the Indian Penal Code. Out of them Yogavalli, Arumugam and Navamani faced trial in the court below as the other two had absconded during the pendency of the trial.

The learned Sessions judge after considering the evidence, both oral and documentary, had found the respondents not guilty and acquitted then under section 235(1) of the Code of Criminal Procedure of all the charges.

Being aggrieved by the said judgement and order the prosecution has filed the instant appeal. During the pendency of this present appeal the respondent No. 2 M. Arumugam had expired.

The prosecution case is entirely based on circumstantial evidence. According to Mr. Siva Balan, the learned Special Public Prosecutor, there is enough evidence against these two respondents that they had hatched up a conspiracy with Ravi and Raghupati, the other accused persons named in the FIR and who are presently facing trial before the Learned Sessions Judge. According to him, because of a dispute over a piece of the land there was enmity between Rahida Banu and the respondents and Rashida Banu was murdered on March 26, 1997 with the help of Raghupati and Ravi who recklessly drove a cab and hit the scooter driven by Mr. Hanif where Rashida was a pillion rider. According to the prosecution the murder had taken place in a manner to give it a look of an accident. But it was something far more serious than that. The taxi concerned had deliberately hit the scooter and as a result of the injury received Rashida Banu had died at the spot.

The prosecution had examined as many as 41 witnesses to prove the charges against the accused persons. Mr. Siva Balan laid special emphasis on the evidence of PW 23, K.M. Hanif, the de facto complainant. Hanif has given details of the origin of the dispute between Rashida and the accused persons. He also narrated the incident on the night between March 24-25, 1997 and noted the presence of the relevant taxi at the spot on that night.

According to PW 23 on the fateful day i.e. on March 26, 1997 he had accompanied the victim to the office of the Deputy Commissioner as she was facing a land dispute. On their way back home they saw the accused persons. At this the victim became a little nervous. PW 23 further noted the presence of the said taxi near the court with Raghupati standing nearby.

About the alleged incident the de facto complainant had given a graphic description. The offending vehicle dashed them from the back. His scooter was damaged. The taxi again ran over the victim from its back side and ran over her. Again the vehicle proceeded further and dashed the scooter and fled away. Rashida Banu and the de facto complainant were taken to the hospital where she was declared dead.

Mr. Siva Balan placed the evidence of Dr. Walid Ali Shah, PW 32, who conducted the autopsy. The injury as well as the post mortem report showed marks of abrasion and tyre marks on different parts of the body of the victim. The post mortem report clearly mentioned that death was homicidal in nature. He had given his very clear opinion that in ordinary road accidents multiple tyre marks in different directions are not to be found and the injuries sustained by the victim could not be inflicted on her by a single hit. The fracture in the front and back side of the body can be caused by an object running to and fro.

The prosecution placed evidence of several witnesses to prove bad blood between the victim and accused persons and contended that because of this bad blood the accused persons hatched a conspiracy to murder Rashida Banu and to give it a look of an accident.

According to PW 18 Haidrus on March 26, 1997 at around 5.15 p.m. when he was returning home he found the victim and Hanif proceeding towards the Secretariat in the scooter of the de facto complainant. While they proceeded towards a cinema hall he found a taxi rushing towards Secretariat at a very high speed at which he stopped his scooter and since Raghupati who was known to him was driving the vehicle, he noted the number of the taxi. Subsequently he learnt that the victim and Hanif had met with an accident.

There is indeed some evidence on the inimical relation between the victim and the accused. There is, however, no ocular witness to the incident except the de facto complainant who was driving the scooter. There are witnesses who had heard the sound after it had taken place and had gathered around the spot.

The learned Trial Judge was right in his observation that the respondents were not present at the place of occurrence. The present respondents along with another accused person faced trial as conspirators for which charge under section 302/ 307 and 120B of the Indian Penal Code was framed against them. But primarily the charge against the present respondents is under section 120B of the Indian Penal Code i.e. criminal conspiracy for the alleged offence.

While section 120B of the Indian Penal Code provides for punishment, criminal conspiracy has been defined in section 120A of the Code. In order to sustain a charge of criminal conspiracy two basic ingredients must be present. First, there must be an agreement between persons who are alleged to conspire; and secondly, the agreement must be for an illegal act or for doing by illegal means an act which may not itself be illegal. Thus an agreement between two or more persons must be the gist of the offence. Conspiracy is, therefore, more often than not inferential from circumstances. There may not be any direct evidence about it. Judicial decisions have uniformly laid down the principle that conspiracy can be certainly inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.

In this connection it is necessary to consider section 10 of the Evidence Act as well which may be read in conjunction with section 120A of the Indian Penal Code. Section 10 of the Evidence Act says where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything done, said or written by any one of such persons in reference of the common intention after the time such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it.

Section 10 thus deals with the admissibility of evidence in case of a conspiracy. Under this provision anything done, said or written by any one of the conspirators in respect of the common intention is admissible against all the conspirators for the purpose of proving the existence of conspiracy.

Thus there must a prima-facie evidence with the reasonable ground for the court to believe that two or more persons are parties to the conspiracy and if these conditions are fulfilled anything said, done or written by any one of them will be evidence against the other.

The learned Trial Judge held that even if any animosity existed between the victim and S.P. Arunachalam and P.L. Basu who might have had an interest in the concerned land since these persons have expired there was no point in trying to ascertain their motive at this stage. Navamani acted as a broker in the sale of land to late P.L. Basu. The presence of his name in the agreement for sale is not a ground even to remotely connect him to the alleged incident. I find no infirmity in the observation made by the learned Trial Judge.

Mr. Siva Balan has laid great stress on how P.L. Basu overheard the discussion between the victim, his lawyer and PW 23. P.L. Basu having died this part of the evidence cannot be made applicable to the other accused persons.

The main thrust of the argument for the prosecution was that the accused persons were trying to possess the concerned piece of land for which they had assembled on the previous night of the occurrence. It is only because of the victim''s resistance they had to back out. Failure on the part of the accused persons to get hold of the land had led them to hatch a conspiracy against the victim to murder her so that they might possess the land.

Mr. Siva Balan laid great emphasis on Ext. 15 which is a letter written by the victim to the Sub Divisional Magistrate, Port Blair. She complained that Arunachalam and others were not in possession of the concerned land, but were trying to get the same. She recorded the incident which had taken place at night on March 24-25, 1997. In the said letter she had specifically mentioned the names of S.P. Arunachalam and Arumugam and many other persons who had arrived at the spot with construction materials and weapons. It was also mentioned that when the victim called her relatives and other neighbouring people they left the place threatening that they would come again to occupy the land and Basu and Arumugam, since diseased, threatened her and her relatives to kill them.

With reference to Ext. 15 I fully concur with the learned Trial Judge''s observation that the common intention to grab the piece of land and commit the murder are two different things. That apart, Ext. 15 does not contain the names of the present respondents to sustain the prosecution case of any conspiracy.

For Mr. Siva Balan this letter, i.e. Ext. 15 was a dying declaration of the victim. I am afraid, the apprehension expressed by the victim cannot be stretched to the extent of being described as a dying declaration. There was no declaration, rather it was an allegation. The dying declaration, as the very name suggests, is made by a victim apprehending imminent death. Law attaches a very special value to it as a man or a woman is not likely to either screen the real offender or to indulge in any falsehood implicating a wrong person at the time of his death. The victim in the present case had not received any injury on March 24-25, 1997. The incident had taken place on the next date and as such on the day before she had no occasion or reason to make any declaration which can be considered to be a dying declaration. The dying declaration so to say is an exception to the general rule of hearsay evidence and makes the statement admissible provided the statement relates to the cause of death or exhibits the circumstances leading to death. Section 32 of the Evidence Act says that the statement of relevant facts made by a person who is dead or cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without the amount of delay or expenses are themselves relevant facts in the cases as enumerated in the said section. Of all the cases the only relevant one for the present purpose is when it relates to the cause of death. The other cases mentioned in that provision are irrelevant for us. The law on the point is very well settled that a statement in order to be dying declaration must relate to the cause of death or to any of the circumstances of the transaction which resulted in the death. That being so, the statements and allegation contained in Ext. 15 obviously do not qualify to be described as dying declarations. The prosecution''s submissions in this regard are totally misconceived.

That apart, it is clear from the evidence of PW 37, Mr. S.K. Mandal, that on March 25, 1997 the victim along with PW 23 had attended his chamber in the morning and narrated the incident which had occurred on the night before. Under her instruction Mr. Mandal drafted the complaint addressed to the Sub Divisional Magistrate, Port Blair, and handed over the same to her. That complaint is Ext. 15. This also the rules out the possibilities of Exhibit 15 being considered as a dying declaration.

The learned Trial Judge rightly observed that there was no evidence to show meeting of minds of all the accused persons for the murder of the victim. The prosecution before us also could not produce any evidence which even remotely, let alone unimpeachably, showed that the respondents had conspired to murder the victim over the issue of land dispute.

Mr. Siva Balan has referred to deposition of PWs 17, 18, 23, 27, 29, 31 and 37. None of the said witnesses said anything about any conspiracy hatched by the respondents to murder Rashida Banu. The prosecution evidence on the point is absolutely silent. As a matter of fact the learned Special Public Prosecutor wanted to prove the charge of conspiracy against present respondents by the acts alleged to have been done by Raghupati and Ravi who are not the accused before us. So far as the present set of respondents are concerned the prosecution is required to establish that there was a concerted conspiracy hatched by them to murder the victim. Section 10 of the Evidence Act lays down a very fundamental principle of law that the prosecution must establish the concert and connection amongst the persons so charged to commit the offence. Then, and then only, their statements, actions and declarations are admissible as evidence against each other.

In order to sustain the charges against the present respondents it was imperative for the prosecution to establish that there was common intention between the co-conspirators which it has failed miserably to prove. There is absolutely no evidence of anything said, done, or any declaration made by either of the two contesting respondents or any common intention to murder Rashida Banu. All that Mr. Siva Balan sought to establish was that these two accused persons along with others entered into a conspiracy either to grab or to repossess a piece of land of the victim. Assuming it is to be absolutely correct, even then it does not advance the case of the prosecution. A conspiracy with common intention for possessing the land cannot be stretched to or be used as a conspiracy for committing a murder.

I quite agree with the submission made by Mr. Siva Balan that in the case of a conspiracy hatched in secrecy direct evidence is seldom available. In support of his contention he has relied to the case of Mohan Singh Vs. State of Bihar, for a proposition that since conspiracies are not hatched in the open and are secretly planned they can be even proved by circumstantial evidence. Lack of direct evidence relating to conspiracy has no consequence. It is a very settled principle of law that conspiracy is a matter of inference which is deducible from criminal acts of the accused persons done in presence of an apparent criminal purpose. But such an inference must not be the result of a fleeting or wavering mind. On the contrary it should be based on hard and unimpeachable evidence.

The prosecution in the present case failed to show - let alone establish - that the accused persons ever hatched any conspiracy to murder the victim or that there was any criminal agreement between the persons for the commission of offence with which they have been charged. Since the prosecution has absolutely failed to prove the agreement, the allegation of the common plan of carry out a concerted act must also equally fail.

There is no circumstantial evidence in the present case from which it can be said that the present accused persons entered into a conspiracy to murder Rashida Banu.

The basic requirement to establish the charges against the present accused persons by circumstantial evidence is absolutely missing. The cardinal test which has to be satisfied to rely upon the circumstantial evidence is that the circumstance from which an inference of guilt is sought to be drawn must be clearly established. These circumstances must conclusively lead to the offence of the accused and they must form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused person. In other words, the chain of evidence must be such which must not leave any ground for a different conclusion about the innocence of the accused persons. In Prem Thakur -vs- State of Punjab, reported in A.I.R 1983 SC 61, the Supreme Court observed that "in a case which depends wholly upon the circumstantial evidence the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. The circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt."

In the present case, there is no circumstances supporting the exclusive hypothesis of guilt of the respondents. In other words there is no clinching evidence whatsoever which establishes their guilt. The acts alleged to have been done by Ragupathy and Ravi cannot be treated as those done by the present accused persons as well and cannot be used as evidence against the respondents. The prosecution has failed to appreciate that irrespective of the heads of the charges, those against the respondents were basically very different from the allegation against Raghupati and Ravi. In the case of Kehar Singh and Others Vs. State (Delhi Administration), the Supreme Court observed that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The Supreme Court further observed that an offence of conspiracy requires some kind of physical manifestation of agreement. The relevant acts or conduct must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant events artfully arranged so as to give an appearance of coherence.

The law on the point was settled more than half a century ago by the Supreme Court in the case of Major E.G. Barsay Vs. The State of Bombay, , where it was held that the gist of the offence of conspiracy is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy even if an illegal act agreed to be done had not been so done. In the case of State through Superintendent of Police, CBI/SIT Vs. Nalini and Others, the Supreme Court reiterated the said principle that the meeting of minds of two or more persons for doing an illegal or an act by illegal means is the sine qua non of a criminal conspiracy.

For the reasons aforesaid and particularly in view of lack of any material evidence to sustain the charges it must be held that the prosecution had failed to establish the charges against the accused persons. I find no impropriety or infirmity in the judgement and order of acquittal by the learned Trial Judge. It calls for no interference.

There is thus no merit in the appeal and the same is dismissed.

Urgent certified copy of this order, if applied for, be supplied to the learned advocates for the respective parties upon compliance of usual formalities.

Indira Banerjee, J.

I agree.