2004 Supreme(SC) 313

2004(4) Supreme 56
Supreme Court of India
(From IIIrd Additional Metropolitan Sessions Judge, Hyderabad)
Doraiswamy Raju and Arijit Pasayat, JJ.
Esher Singh -Appellant
versus
State of Andhra Pradesh -Respondent
Criminal Appeal No. 1363 of 2003
With
Criminal Appeal Nos. 1523 and 1524/2003
Decided on 15-3-2004
Counsel for the Parties :
For the Appearing Parties : R.K. Jain, Hardev Singh, U.R. Lalit, Mrs. K. Amreshwari, Sr. Advocates, S.S. Nehra, Dr. I.B. Gaur, Abhay Prakash Sahay, P.R. Ramasesh, Guntur Prabhakar, Advocates.

Important points
1. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed.
2. Demand for Khalistan is clearly encompassed by the definition of ‘Disruptive Activities’ in Section 4 of the TADA.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987-Section 15-Confessional statement of co-accused-Admissibility-Expression ‘charged and tried’ in Section 15-Two persons who are the accused and co-accused must be charged in the same trial-They must be tried together-Confession of co-accused is substantive evidence-Use of a confessional statement against a co-accused is permissible when both the accused making confessional statement and co-accused are facing trial after framing of charges.

       Held : Crucial words in the provision are “charged and tried”. The use of the expression “charged and tried” imposes cumulative conditions. Firstly, the two persons who are the accused and the co-accused in the sense used by the Legislature under Section 15, must be charged in the same trial, and secondly, they must be tried together. Kalpnath Rai’s case (supra) has been overruled in Nalini’s case (supra) making the position clear that the confession of a co-accused is substantive evidence. (Para 19)

       The only interpretation that can be given to the expression “charged and tried” is that the use of a confessional statement against a co-accused is permissible when both the accused making the confessional statement and the co-accused are facing trial after framing of charges. In State of Gujarat v. Mohammed Atik and Ors. (1998 (4) SCC 351) this position was highlighted. Unless a person who charged faces trial along with the co-accused the confessional statement of the maker of the confession cannot be of any assistance and has no evidentiary value as confession when he dies before completion of trial. Merely because at some stage there was some accusation, unless charge has been framed and he has faced trial till its completion, the confessional statement if any is of no assistance to the prosecution so far as the co-accused is concerned. In fact, in para 10 in Mohammed Atik’s case (supra) it was observed that when it was impossible to try them together the confessional statement has to be kept out of consideration. (Para 21)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987-Section 4-Disruptive Activities-Inclusive definition-Demand for Khalistan is clearly encompassed by the said definition-A1 was giving provocative speeches for formation of Khalistan and was inciting violence fanning the religious feelings-Whether trial Court was justified in convicting A1 for the offence u/s 4 of TADA-(Yes).

       Held : So far as the appeal filed by ­accused Esher Singh is concerned, the basic question is that even if the confessional statement purported to have been made by A-5 is kept out of consideration, whether residuary material is sufficient to find him guilty. Though it is true as contended by learned counsel for the accused-appellant Esher Singh that some statements were made for the first time in Court and not during investigation, it has to be seen as to what extent they diluted the testimony of Balbeer Singh and Dayal Singh (PWs 16 and 32) used to bring home the accusations. A mere elaboration cannot be termed as discrepancy. When the basic features are stated, unless the elaboration is of such nature that it creates a different contour or colour of the evidence, the same cannot be said to have totally changed the complexion of the case. It is to be noted that in addition to the evidence of PWs 16 and 32, the evidence of S. Narayan Singh (PW-21) provides the necessary links and strengthens the prosecution version. We also find substance in the plea taken by learned counsel for the State that evidence of Amar Singh Bungai (PW-24) was not tainted in any way, and should not have been discarded and dis-believed only on surmises. Balbeer Singh (PW-3) the son of the deceased has also stated about the provocative statements in his evidence. Darshan Singh (PW-14) has spoken about the speeches of the accused Esher Singh highlighting the Khalistan movement. We find that the trial Court had not given importance to the evidence of some of the witnesses on the ground that they were relatives of the deceased. The approach is wrong. Mere relationship does not dis-credit the testimony of a witness. What is required is careful scrutiny of the evidence. If after careful scrutiny the evidence is found to be credible and cogent, it can be acted upon. In the instant case, the trial Court did not indicate any specific reason to cast doubt on the veracity of evidence of the witnesses whom it had described to be the relatives of the deceased. PW-24 has categorically stated about the provocative speeches by A-1. No definite cross-examination on provocative nature of speech regarding Khalistan movement was made, so far as this witness is concerned. (Para 23)

       Section 4 of TADA covers a wide range of disruptive activities. It not only encompasses commission of disruptive activities, but also conspiracy, attempt, abetment, advocating, advising or facilitation of such activity or an act preparatory to such activity. What is disruptive activity is described in sub-section (2) of Section 4. Sub- section (3) further widens the coverage of generality given by sub-section (2). For the purpose of applying sub-section (2), the explanation appended thereto assumes great significance for the case at hand; more particularly in view of the inclusive definition of “secession”. Demand for Khalistan is clearly encompassed by the said definition. The ingredients necessary to bring in application of Section 4 of TADA have been clearly established. Therefore, the appeal filed by Esher Singh is devoid of merit and stands dismissed as the sentence imposed is found to be commensurate with the gravity of the offence and also needs no interference. (Paras 26 and 27)

       (iii) Constitution of India-Article 136-Appeal against acquittal by High Court-Competence of a private party as distinguished from the State.

       Held : Appellate power vested in this Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. It is a plenary power, ‘exercisable outside the purview of ordinary law’ to meet the pressing demands of justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC 520). Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of this Court nor inhibits anyone from invoking the Court’s jurisdiction. The power is vested in this Court but the right to invoke the Court’s jurisdiction is vested in no one. The exercise of the power of this Court is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and not the State has invoked that Court’s jurisdiction. We do not have slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of interested private parties also. The circumstance that the Code does not provide for an appeal to the High Court against an order of acquittal by a subordinate Court, at the instance of a private party, has no relevance to the question of the power of this Court under Article 136. (Para 29)

       Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court, whether it is the State or a private party that invokes the jurisdiction of this Court, and special leave is not granted as a matter of course but only for good and sufficient reasons, well established by the practice of this Court. (Para 29)

       In express terms, Article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on this Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the Court. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limits, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice whenever it is and this power is largely derived in the common run of cases from Article 136. (Para 31)

       It is manifest that Article 136 is of composite structure, is power-cum-procedure - power in that it vests jurisdiction in this Court and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process with the avowed purpose of averting miscarriage of justice. In the instant case, both the State and Balbir Singh (son of the deceased) have questioned correctness of the impugned judgment. Appeal filed by Balbir Singh is first in point of time. We are of the view that on the facts of the case, there is no question of holding the appeal filed by Balbir Singh to be not maintainable. (Para 32)

       (iv) Indian Penal Code, 1860-Sections 302/120B-Terrorist and Disruptive Activities (Prevention) Act, 1987-Sections 3(3), 4, 5 and 6-Arms Act, 1959-Section 27-Nine persons were alleged to be responsible for homicidal death of deceased-Prosecution of A1, A2, A3, A4, A6-A9 absconded-Prosecution case that accused persons conspired to kill deceased, to abet terrorist and disruptive activities-Deceased had established many educational institutions to serve sikh community-Accused persons intended to take over the said institutions and make a base for Khalistan movement-A1, appellant, working as Sub Inspector of Central Reserve Police Force left the service after ‘Operation Blue Star’-Allegations that in pursuance of criminal conspiracy, A7 and A9 entered into house of deceased and pumped bullets on him-Trial Court found that appellant was guilty of offence under Section 4 of TADA as other allegations were not established so far as appellant and other accused were concerned-Acquittal of other accused persons-Appeal against-Evidence shows that A1 was inciting Sikhs to form separate Khalistan State-Whether trial Court was justified in holding that accusations u/s 120-B were not made out-(Yes)-Whether acquittal of accused persons for offence u/s 302 or 302/120B, IPC and Sections 3(3), 5 and 6 of TADA and Section 27 of Arms Act was sustainable-(Yes).

       Held : The aspects highlighted by learned counsel for the State and Balbir Singh do not disturb the positive conclusions of the trial Court about the absence of any positive and cogent evidence so far as the respondents except accused Esher Singh is concerned. None of the witnesses examined on behalf of the prosecution stated anything about the descriptive particulars of the assailants. There was also no evidence of A-1 indulging in any manner armed with firearms or explosives. The evidence of witnesses goes only to the extent of showing, as noted earlier that A-1 was giving provocative speeches for formation of Khalistan and inciting the Sikhs for violence fanning the religious feelings. The evidence shows that A-1 was inciting the Sikhs to form separate Khalistan State and making Hyderabad as base for Khalistan movement. Merely because the accused A-1 was holding the deceased, as alleged, to be responsible for the killing of six Sikh students that per se does not prove conspiracy. Section 120B of IPC is the provision which provides for punishment for criminal conspiracy. (Paras 33 and 34)

       No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. (Para 35)

       In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B IPC. (Para 44)

       Even in the light of the principles highlighted above when the evidence is tested, the inevitable conclusion is that the trial Court was justified in holding that accusations under Section 120B were not made out so far as the offences under IPC are concerned. So far as the motive for the killing is concerned, the evidence is clear to the extent that A-1 wanted removal of the deceased from the bodies of various trusts and educational institutions and not his removal from this world. In the absence of adequate material to establish commission of offences punishable under Section 302 or 302 read with Section 120B and Section 3(3), 5 and 6 of TADA and Section 27 of the Arms Act, as rightly held to have been not established by the trial Court, the appeals filed by the State and Balbir Singh are without merit. (Para 47)