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2023 Supreme(SC) 776
SUPREME COURT OF INDIA
ABHAY S. OKA, SANJAY KAROL, JJ.
BALLA @ FARHAT – Appellants
VERSUS
STATE OF MADHYA PRADESH – Respondents
Criminal Appeal No.2256 of 2011 with Criminal Appeal No.2257 of 2011
Decided On : 10-08-2023
For the Appellant(s) : Mr. Raj Kishor Choudhary,Adv. Mr. Shakeel Ahmed,Adv. Ms. Pratibha Singh,Adv. Mr. Rizwan Ahmad,Adv. Mr. Amir Kaleem,Adv. Mr. Anupam Bhati,Adv. Mr. Nakul Chaudhary,Adv. Mr. T. Mahipal, AOR
For the Respondent(s): Mr. Abhinav Shrivastava, Adv. Ms. Mrinal Gopal Elker, AOR Mr. Pashupati Nath Razdan, Adv.
IMPORTANT POINT
Criminal conspiracy – Agreement by two or three persons is required to constitute a criminal conspiracy – There cannot be conspiracy by only one accused.
Headnote:
Indian Penal Code, 1860 – Sections 120B and 411 – Criminal conspiracy and dishonestly receiving stolen property – Conviction and sentence – Agreement by two or three persons is required to constitute a criminal conspiracy – There cannot be conspiracy by only one accused – It is necessary for applicability of Section 120-B of IPC that there must be two or more persons agreeing for the purpose of conspiracy – Prosecution failed to prove recovery of alleged stolen cash from accused – Appellants acquitted. (Paras 8, 9 and 10)
Facts of the case:
Case against the three appellants in these two appeals is of commission of an offence punishable under Section 411 of the Indian Penal Code, 18601 of dishonestly receiving stolen property. The allegation against them is that the stolen currency notes worth Rs.18,000/-, Rs.50,000/- and Rs.20,000/- respectively were seized from them based on memoranda under Section 27 of Indian Evidence Act, 1872.
Findings of Court:
Criminal Appeal No.2257 of 2011 stands abated as far as appellant no.1 – Habib is concerned. Appellant – Balla @ Farhat (accused no.5) in Criminal Appeal No.2256 of 2011 and appellant no.2 – Imran (accused no.7) in Criminal Appeal No.2257 of 2011 are acquitted of the offences alleged against them. To that extent, impugned judgments are modified. Both appellants - Balla @ Farhat and Imran are on bail. Therefore, their bail bonds stand cancelled.
Result : Appeals allowed.
JUDGMENT
ABHAY S.OKA, J.
1. In these two appeals, we are dealing only with accused no.5-Balla @ Farhat, accused No.6-Habib and accused No.7- Imran.
2. It is not in dispute that appellant no.1 - Habib in Criminal Appeal No.2257 of 2011 is no more and, therefore, the said appeal insofar as appellant no.1-Habib is concerned stands abated.
3. We may refer to the prosecution case in brief. There were twelve accused and out of the twelve, it is alleged that four were absconding. The trial proceeded against the remaining eight. The prosecution case is that on 26.11.2001 after getting a consignment of Masoor loaded in a truck at Silwani for being transported to Indore, Vivek (PW-15) boarded the truck, which at the relevant time, was allegedly driven by accused no.5 - Balla @ Farhat. The case of the prosecution is that Vivek (PW-15) was carrying a cash amount of Rs.1,00,000/- (Rupees one lakh) in a bag. He was also carrying 1350 silver coins in two plastic bags. Further, the case of the prosecution is that at Silwani, one Manoj (PW-4) handed over a red bag containing currency notes worth Rs.1,00,000/- (Rupees one lakh) and a list of grocery items to be handed over to Manohar (PW-5) for purchasing the same at Indore. It is, however, alleged that after the Truck reached Gairatganj, accused No.5 - Balla @ Farhat got down and one Lalmiyan started driving the Truck.
4. In the early morning of 27.11.2001, while the Truck was passing through Bairagarh, it was overtaken by a white Maruti Car. The criminals sitting in the car got out and stopped the truck under the false pretext that the Truck was involved in an accident. One of them pushed the driver aside and started driving the Truck himself. The other two persons entered the truck. They were brandishing weapons. The allegation is that the offenders picked up all the articles in the Truck.
5. The case against the three appellants in these two appeals is of commission of an offence punishable under Section 411 of the Indian Penal Code, 18601[For short, “IPC”] of dishonestly receiving stolen property. The allegation against them is that the stolen currency notes worth Rs.18,000/-, Rs.50,000/- and Rs.20,000/- respectively were seized from them based on memoranda under Section 27 of the Indian Evidence Act, 1872 (Exhibit P-11, P-12 and P-13).
6. The Trial Court had convicted the appellants herein for the offence under Section 120B of the IPC. They were also convicted for an offence punishable under Section 412 of the IPC. However, in the appeal so far as accused no.6 - Habib and accused no.7 - Imran are concerned, the conviction under Section 120B of the IPC was set aside and the conviction under Section 412 was converted into Section 411 of the IPC by the High Court of Madhya Pradesh vide the impugned judgment dated 22.10.2010. In the case of accused no.5 - Balla @ Farhat, the conviction for the offence under Section 120B was maintained. However, the conviction under Section 412 was converted into Section 411 of the IPC by the High Court. Except for accused no.5-Balla, no other accused was convicted for the offence punishable under Section 120-B of IPC. One accused was already acquitted by the Trial Court. The other accused were convicted by the High Court for the offences punishable under Section 395 and Section 395 read with Section 397 of IPC.
7. With the assistance of the learned counsel appearing for the parties, we have perused the material on record. It is not in dispute that PW 6 - Nirmal Kumar and PW 7 - Rakesh Jain are the only two witnesses, who according to the prosecution, were the witnesses to the recovery of the aforesaid cash amounts from the appellants and there is no other documentary evidence except memoranda at Exhibit P-11, P-12 and P-13.
8. As regards the conviction of accused no.5 – Balla @ Farhat under Section 120-B of IPC is concerned, we find that the High Court has set aside the conviction of all six other accused persons under Section 120B and accused no.5 – Balla @ Farhat is
