2000 Supreme(SC) 1823

2000(7) Supreme 529
SUPREME COURT OF INDIA
(From Kerala High Court)
K.T. Thomas & R.P. Sethi, JJ.
Saju -Appellant
versus
State of Kerala -Respondent
Criminal Appeal No. 699 of 1998
Decided on 15-11-2000
Counsel for the Parties :
For the Appellant : K.V. Sreekumar, Advocate.
For the Respondent : G. Prakash, Jyothish A.P., and Ms. Beena Prakash, Advocates.

IMPORTANT POINTS
1. To convict an accused with the aid of Section 120B it has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established.
2. Motive by itself cannot be proof of conspiracy.

Headnote:Indian Penal Code, 1860-Section 302 r/w Section 120B and 109-Murder-Conviction invoking Section 120B-Charge against appellant and co-accused that they murdered appellant s love-Motive that deceased refused to get aborted child allegedly conceived through appellant accused-Co-accused stabbed her to death-Co-accused convicted to life sentence-No eye witness-Circumstantial evidence-No positive evidence proving or suggesting that appellant was responsible for pregnancy of deceased-No evidence suggesting existence of insistence by appellant for abortion-Important link in chain of circumstances attributed against him missing-Motive by itself cannot be proof of conspiracy-Mere meeting of appellant with accused not sufficient to infer existence of criminal conspiracy-Existence of circumstances suggesting hatching of criminal conspiracy absent-Conviction with aid of Section 120B or Section 109 not justified-Appellant entitled to benefit of doubt-Conviction set aside.

       Held : It has to established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established. (Para 10)

       In the instant case the hatching of conspiracy between the accused persons has been sought to be proved on the ground that as the deceased had declined to get the pregnancy aborted, the appellant wanted to get rid of her, suggesting the existence of circumstance of motive. Another circumstance relied upon by the prosecution is that both the accused were seen together on the date of murder near or about the place of occurrence. Some conversation is also stated to have taken place between the accused persons, the contents of which are neither disclosed nor suggested. Accused No.1 alone was found to have boarded the bus in which the deceased was travelling and alighted from it along with her. (Para 11)

       There is no positive evidence proving or suggesting that the appellant was responsible for the pregnancy of the deceased. In the absence of evidence regarding the circumstance attributing the pregnancy of the deceased to the appellant and his insistence for abortion of the child, the important circumstance of motive cannot be heldto have been proved. The courts below, therefore, were not justified in holding this circumstance proved for the existence of criminal conspiracy to commit the crime of murder of the deceased. In the absence of any evidence suggesting the existence of a circumstance of insistence by the appellant for abortion, an important link in the chain of circumstances attributed against him is missing. Even otherwise motive by itself cannot be a proof of conspiracy. (Para 12)

       It is true that a number of witnesses have deposed that they had seen both the accused together on the date of occurrence but it is equally true that such meeting was not unusual as admittedly they were working together in the plantation. Mere meeting would by itself not be sufficient to infer the existence of a criminal conspiracy. There is no suggestion, much less legal evidence to the effect that both the accused were so intimate which would have compelled Accused No.1 to agree to be a conspirator for the killing of the deceased at the instance of the appellant. Statement of the prosecution witness does not suggest, even by implication that both the accused were together on the day of occurrence. The statement of the witnesses noticed hereinabove may probabilities the presence of both the accused together but does not prove beyond doubt that they were together near the road at the place of occurrence on the fateful day. Assuming they were together, would not necessarily lead to the conclusion that they had met in furtherance of the conspiracy to murder the deceased. We are of the opinion that the prosecution did not succeed in proving this circumstance beyond reasonable doubt. Conviction of the appellant on the basis of the existence of the alleged circumstance cannot be justified. The appellant is entitled to the benefit of the reasonable doubt. The High Court was, therefore, not justified to hold that the accused persons had been seen together before and after the incident when Jameela boarded the bus for the Hospital and alighted at the bus stop around 2.30 p.m. The High Court was also not justified to hold that there was no particular reason for them to be together except as stated by the prosecution. It has come in the prosecution evidence that the witnesses and the accused were plantation workers and would usually meet each other. (Paras 13 and 14)

       In the absence of the existence of circumstances suggesting the hatching of criminal conspiracy, we are of the opinion that the appellant could not have been convicted and sentenced with the aid of Section 120B or Section 109 I.P.C. No fact or circumstance with respect to the abetment attracting the applicability of Section 109 I.P.F. has been brought to our notice. To prove the charge of abetment, the prosecution is required to prove that the abettor had instigated for the doing of a particular thing or engaged with one or more other person or persons in any conspiracy for the doing of that thing or intentionally aided by an act of illegal omission, doing of that thing. The prosecution miserably failed to prove the existence of any of the ingredients of Section 107 I.P.C. Learned counsel appearing for the respondent- State submitted that after the dismissal of the appeal of Accused No.1, the charge of conspiracy against the appellant should be deemed proved. We are not impressed with such a submission particularly when the prosecution had alleged that the said accused had committed the crime of murder by stabbing the deceased with his knife. Merely because the charge of conspiracy fails against the appellant, it cannot be said that the conviction and sentence awarded to the Accused No.1 was illegal. The prosecution did not prove the charge of conspiracy against the appellant beyond all reasonable doubt. We are of the opinion that the appellant is entitled to the benefit of reasonable doubt existing in the case. The appeal is accordingly allowed and the impugned judgment of the trial as well as of the High Court, in so far as it relates to the appellant, is set aside and the appellant is acquitted. (Paras 15, 16 and 17)