Penal Code, 1860: ss. 302 , 201, 120-B – Circumstantial Evidence – Criminal Conspiracy – Businessman-victim threatened for money and shot dead by two motorcyclists – Appellant and several others chargesheeted – Trial court convicted and sentenced all the accused persons except one – However, the High Court acquitted all the accused except the appellant – On appeal, held: Prosecution case rests solely on circumstantial evidence, as none was found present at the scene of the incident – Neither of the independent witness supported the prosecution case – Veracity of the Investigating Officer’s testimony does not inspire confidence on account of various lapses – Nothing on record suggests that the appellant had conspired to commit offence – Also all other accused were acquitted by the courts below and a single person cannot hatch a conspiracy – Thus, the High Court without appreciating the testimonies of the witnesses in their true import and meaning, and without having any discussion concerning the complicity of the appellant, in a perfunctory manner held the prosecution to have established the case, which is entirely circumstantial in nature, against the appellant – High Court erred in holding that the evidence reveals that in all human probability the act must have been done by the appellant – Principle of determining the guilt of the appellant in a case involving circumstantial evidence is not that of probability but certainty and that all the evidence present should conclusively point towards only a singular hypothesis, which is the guilt of the appellant – Thus, the order of the High Court is set aside – Arms Act, 1959 – s. 25(1)(1-b)(a) – Evidence Act, 1872 – Code of Criminal Procedure, 1974 – Chapter XII.
Penal Code, 1860:120-B – Charge of criminal conspiracy under – Basic requirement of – Held: For the charge of criminal conspiracy u/s. 120B, to be established, an agreement between the parties to do an unlawful act must exist – In case of lack of direct evidence, it is not safe to hold a person guilty u/s. 120B – To prove the offence of criminal conspiracy, it is imperative to show a meeting of the minds between the conspirators for the intended common object – On facts, appellant cannot be convicted of criminal conspiracy solely for having concealed the location of the incriminating materials / articles and, in the absence of any evidence establishing meeting of the minds – Given that all the other coaccused have been acquitted by the courts below, meaning they were innocent of the crime, the fundamental requirement of a criminal conspiracy is not met.
Code of Criminal Procedure, 1973 : Chapter XII – Duties and responsibilities of the Investigating Officer – Compliance of – Held: Investigating Officer is the person tasked with determining a direction, the pace, manner and method of the investigation – It is his statutory duty under the CrPC and is also a constitutional obligation to ensure the maintenance of peace and the uphold of rule of law – On facts, Investigating Officer miserably failed to investigate as is expected and required of a police officer to investigate a crime of murder, especially when not even a single eyewitness exists, and the entire case rests entirely on circumstantial evidence – Investigating Officer did not meet the obligations he was under – Numerous infirmities affected the conduct of the Investigation Officer calling into question, credibly, the investigation conducted by him or upon his directions.
Allowing the appeal, the Court
HELD: 1.1 The prosecution’s case rests solely on circumstantial evidence, as none was found present at the scene of the incident. Further, it is also not the case of the prosecution that the present appellant had either used or shot the deceased with the gun allegedly recovered based on his statement, which was purportedly made before the police officer-PW-23 in the presence of independent witnesses PW-6 and PW-7. [Paras 10 and 11][837-G-H]
1.2. Neither of the independent witness PW 6 and PW 7 supported the prosecution case. Despite extensive cross examination conducted by the Public Prosecutor, nothing substantial could be elicited from their testimonies indicating any guilt of the accused. PW-1, nephew of the deceased, has not made out any person to be responsible for the offence, nor has he expressed any doubt or pointed fingers against any of the accused, much less the present appellant. Close examination of the testimony of the Investigating Officer-PW-23 reveals that the witness miserably failed to investigate as is expected and required of a police officer to investigate a crime of murder, especially when not even a single eyewitness exists, and the entire case rests entirely on circumstantial evidence. [Paras 14, 18 and 19][838-F; 839-C-D]
1.3. The homicidal death of the victim is not in dispute. It has come in the testimony of the Investigating Officer that on 27.9.2009, after registration of the complaint, he visited the spot; carried out the preliminary investigation; sent the dead body for post-mortem and collected several incriminating articles. His testimony reveals that the prime accused was SP, who stands acquitted on all charges by the Court below, and this Court is not called upon examine the complicity of the other accused. It further emanates from the testimony of PW 23 that the present appellant was not present at the spot of the crime. In fact, not even one person has disclosed his complicity in the crime. His testimony further reads the complicity of the appellant in the crime, to be suspected only based on the disclosure statements of co-accused SP to the effect that the former could get recovered pistol/bullets/live cartridges from the house of co-accused AS. The courts below disbelieved this part of the version of the deponent qua the other accused. Hence, the High Court’s reasoning in arriving at appellant’s guilt is illogical if not self-contradictory. [Paras 2022][839-E-H; 840-A]
1.4 Nothing on the record suggests that the instant appellant had conspired to commit the offence. At best, as shown from the testimony of this deponent, the present appellant has only concealed the relevant incriminating evidence/articles. The materials on record in no way establish that before the commission of the offence, the accused had any common purpose, object or intention of committing the crime, without the same being borne out of the records, the charge of criminal conspiracy and of common intention which is to be read with Section 302 of the Penal Code, fails. For the charge of criminal conspiracy under Section 120B to be established, an agreement between the parties to do an unlawful act must exist. In some cases, direct evidence to establish conspiracy may be absent, but when the lack of evidence is apparent, it is not safe to hold a person guilty under this section. To prove the offence of criminal conspiracy, it is imperative to show a meeting of the minds between the conspirators for the intended common object. Thus, the present appellant cannot be convicted of criminal conspiracy under Section 120B, solely for having concealed the location of the incriminating materials/ articles and, in the absence of any evidence establishing meeting of the minds. Given that all the other co-accused have been acquitted by the courts below, meaning they were innocent of the crime, the fundamental requirement of a criminal conspiracy is not met. The charge of criminal conspiracy also fails on the ground that a single person cannot hatch a conspiracy. [Paras 3033][841-E-H; 842-A,B-D]
1.5 Even about the search, the veracity of the Investigating Officer’s testimony is not found to be inspiring in confidence on account of various lapses. For he did not examine the owner of the house; did not enter his movement in the case diary; did not record that he took the accused for effecting the recovery; was not able to describe clearly the area from where the recovery was effected; admits both the independent witnesses, who do not belong to the area from where the recoveries were effected; does not associate any of the residents of the area for conducting the search; does not examine any of the residents for carrying out any further investigation and most importantly admits that both the memo of arrest as also the recovery not to have been prepared by him or bearing his signature and the same too, have many corrections and over-writing, thus reducing the correctness and authenticity of this document. Furthermore, he is not clear about the description of the articles recovered. [Paras 35 and 36][843-A-C]
1.6 The Investigating Officer is the person tasked with determining a direction, the pace, manner and method of the investigation. It is a statutory duty under the Cr.P.C. and is also a constitutional obligation ensuring the maintenance of peace and the upholding of rule of law. The Magistrate concerned is not empowered to interfere with the investigation being carried out up until the submission of the report by the said officer. Needless to state then that the role of the Investigating Officer is essential and crucial. Chapter XII Cr.P.C. titled as “information to the police and their powers to investigate”, lays down the procedure and course of action to be taken by the police upon receipt of the commission of an offence cognizable in nature. [Paras 38, 40][843F, H; 844-C-D]
1.7 The Investigating Officer did not meet the obligations he was under. Numerous infirmities affected the conduct of the Investigation Officer calling into question, credibly, the investigation conducted by him or upon his directions. [Para 44][846-D]
1.8 The High Court, without appreciating the testimonies of the witnesses in their true import and meaning, and without having any discussion concerning the complicity of the accused, in a perfunctory manner held the prosecution to have established the case, which is entirely circumstantial in nature, against the instant appellant. Significantly, the High Court holds that the evidence reveals that “in all human probability the act must have been done by the accused”. Inter alia, it is this finding which is found to be erroneous, for the principle of determining the guilt of the accused in a case involving circumstantial evidence is not that of probability but certainty and that all the evidence present should conclusively point towards only a singular hypothesis, which is the guilt of the accused. The judgment passed by the High Court is set aside.[Paras 45-46][846-E-H] Vijay Shankar v. State of Haryana (2015) 12 SCC 644 : [2015] 9 SCR 977; D.K Basu v. State of WB (1997) 1 SCC 416 : [1996] 10 Suppl. SCR 284; Parveen v. State of Haryana, 2021 SCC OnLine SC 1184; Geeta Devi Vs. State of U.P. & Ors. 2022 SCC OnLine 57;
Amarnath Chaubey v. Union of India (2021) 11 SCC 80; Manohar Lal Sharma v. Union of India (2014) 2 SCC 532 : [2013] 17 SCR 1099; Common Cause v.
Union of India (2015) 6 SCC 332 : [2015] 6 SCR 731; Pooja Pal v. Union of India (2016) 3 SCC 135 : [2016]
11 SCR 560; Bhagwant Singh v. Commission of Police (1983) 3 SCC 344 : [1983] 3 SCR 109; Mohd. Imran Khan v. State (Govt. of NCT of Delhi), (2011) 10 SCC
192 : [2011] 15 SCR 1030 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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