IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1203 of 2008
For Approval and Signature:
HONOURABLE MR.JUSTICE KS JHAVERI HONOURABLE MR.JUSTICE Z.K.SAIYED
====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of 4 law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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IMRANKHAN ANWERKHAN PATHAN Appellant(s)
Versus
STATE OF GUJARAT Opponent(s)
====================================== Appearance :
MR GA PATHAN for Appellant(s) : 1,MR HEMANT B RAVAL for Appellant(s) : 1,MS.S G.PATHAN for Appellant(s) : 1, MR JK SHAH ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ======================================
CORAM : HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 19/07/2012
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE Z.K.SAIYED)
1.0 Present Criminal Appeal preferred by the present appellant Imrankhan Anwerkhan Pathan original accused No. 2 is directed against the judgment and order of conviction and sentence dated 14.06.2007 passed by the Learned Additional Sessions Judge, Fast Track No.8, Vadodara in Sessions Case No. 138 of 2004, whereby the accused has been convicted of the offence charged against him. The accused was convicted of the offence under Sections 365, 395 & 120(B) of the Indian Penal Code.
1.2 The appellant original accused No.2 was ordered to undergo rigorous imprisonment for ten years & fine of Rs. 10,000/ in default to undergo simple imprisonment for two years for offence under Section 395 of Indian Penal Code. He was ordered to undergo simple imprisonment for five years and fine of Rs. 500/ , in default to undergo simple imprisonment for one year for offence under section 365 of Indian Penal Code. He was also ordered to undergo simple imprisonment for two years and fine of Rs. 1000/ in default to undergo simple imprisonment for two years for offence under section 120(B) of Indian Penal Code. No further sentence was imposed under section 411 & 412 of Indian Penal Code.
2.0 It is the case of the prosecution that the complainant was carrying on a transport company in the name and style of 'Yogeshwar Transport Co.' near Jashodanagar Cross Road. The complainant was having two trucks bearing registration Nos. GJ2V4456 and GJ8T4443. On 10.10.2003, the complainant had a talk with one Lalchandbhai of Chetan Transport and agreed to transport rice from Jetalpur to Sangli, Kolhapur.
The amount of Rs. 10800/ was fixed towards transport charges. Driver Usman and Pappu went to Jetalpur after loading ten tons of rice in the truck and reached the office of the complainant.
2.1 On the same day, at around 8:00 p.m. at night, the fatherinlaw of the complainant's son/daughter told him that they had to send silver bricks, biscuits and ornaments to Kolhapur as he used to deal in agadiya consignments and therefore as the truck was going to that place, the complainant asked him to send the items with the truck. So the goods bearing silver bricks and biscuits worth Rs. 60 lakhs were loaded in the truck by the drivers in the presence of the complainant and his brother in law and after that the drivers took the truck for delivery of goods.
2.2 On 12.10.2003, in the morning at around 9.30, the driver Usmanbhai telephoned the complainant and informed him that after starting the truck from Ahmedabad, at around 3:00 am, some 8 to 10 persons came in a Tata Sumo. Out of them four persons entered in the truck and forcibly took the truck towards Anand and the Tata Sumo towards Godhra. The driver Usman told that he was abducted by them and somehow he managed to escape and managed to make a call from Madhya Pradesh (M.P).
2.3 The complainant and father in law of the complainant's son/daughter, after informing the control room, came to Karjan and the offence was registered against the accused persons including present appellant with Karjan Police Station. After their arrest and necessary investigation, chargesheet was submitted against the accused. Ultimately, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.
2.4 The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses:
2.5 The prosecution also exhibited the following documents as documentary evidence:
(i) Complaint Ex. 38
(ii) Panchnama of truck Ex. 46
(iii) Panchnama of scene of offence Ex. 43 (iv)Panchnama of voluntary disclosure of hidden muddamal by Zahirmiya Umarmiya Ex. 93 (v)Panchnama of Tata Sumo Ex. 144 (vi)Panchnama of silver coins Ex. 86 (vii)Panchnama of gold pieces Ex. 99 (viii)Panchnama of Mohmadsalimvalimohmad Ex. 84 (ix)Panchnama of weight of silver Ex. 93 (x)Panchnama of recovery of gold pieces Ex. 117 (xi)Panchnama of stolen gold & silver muddamal Ex. 91 (xii)Confession statement of Accused No. 3 u/s 164 Ex. 199 (xiii)Closing Pursis Ex. 228
2.6 At the end of trial, after recording the statement of the accused, and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge passed the judgment and order dated 14.6.2007 as stated hereinabove.
2.7 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the accused has preferred the present appeal.
3.0 Learned advocate Mr. Hemant Raval appearing on behalf of the appellant submitted that the prosecution has not proved the case against the appellant in light of the evidence of the witnesses examined by the prosecution. The prosecution has not proved overt act on the part of the appellant and the appellant is wrongly implicated as conspirator with co accused.
3.1 He further submitted that the prosecution examined 41 witnesses and panchas, but none of the witnesses stated anything against the present appellant.
3.2 He also submitted that no muddamal was recovered from the possession of the present appellant and muddamal was recovered from the possession of other accused person. Even from the evidence of witnesses, not a single witness stated that the present appellant was there at the time of incident.
3.3 He further submitted that the judgment and order of conviction and sentence was passed by the learned Additional Sessions Judge, on the basis of confessional statement of the coaccused Irshad Ahmed @ Tanker Abdul Hamid Ansari, except that there is no material on record to connect the present appellant.
3.4 He also submitted that the panchas turned hostile and the contents of panchnama at Exhibit 93 are not proved beyond reasonable doubt.
3.5 Learned advocate Mr. Raval also submitted that as per the evidence of P.W. 3 Usman, he has seen accused No.1 Nasirkhan and other unknown persons but he did not identify the appellant. Even no test identification parade has been arranged by the Investigating Officer.
3.6 Learned advocate further submitted that no other independent witness has been examined and even the statement of owner of the hotel, where the truck was taken, watchman of the hotel, was not recorded by the investigating Officer even though he had ample opportunity to record the statement. He further submitted that there are many contradictions in the chief examination and crossexamination of the witnesses.
4.0 Later on, after arguing the matter at length, learned advocate Mr. Raval submitted that if this Court is not inclined to allow this Appeal, in that case the sentence imposed upon the appellant, may be reduced.
4.1 He relied upon the judgment and order passed by this Court in Criminal Appeal No.956 of 2007 with allied matter dated 24.8.2009, wherein the sentence was modified so far as the accused No.5 of Criminal Appeal No.965 of 2007 is concerned. As per his submission, the same ratio is required to be applied to the facts of the present case. He also submitted that the present appellant is poor man and he is young.
4.2 He also submitted that the present appellant is in jail since long and therefore, he prayed to acquit the appellant of the charges levelled against him. Accordingly, he prays to reduce the sentence.
5.0 He placed reliance on the case of Amar Singh and Others Vs. State of Madhya Pradesh reported in AIR 1982 Supreme Court 129, in which the accused of that case was charged with Section 395 of the Indian Penal Code and the sentence imposed upon him was reduced from 4 years to 2 years. Therefore, as per his submission, the ratio of that case is totally applicable to the present case.
6.0 Learned APP Mr. J.K. Shah appearing on behalf of the respondent – State submitted that the appellant is involved in very serious offences and therefore, he opposed the submission of learned advocate Mr. Raval to reduce the sentence imposed upon the appellant.
6.1 He drew the attention of the Court to the definition of “conspiracy” and submitted that in the present case, the role of the appellant is of co conspirator, which is proved beyond reasonable doubt. He further submitted that looking to the evidence of P.W. 7 Ambalal Desaibhai Patel recorded at Exhibit 7, it appears that the discovery of the stolen property is proved and it is also prima facie established that the same was recovered from the place of panchnama at Exhibit 93.
6.2 He also submitted that the confessional statement of co conspirator Irshad Ahmad Abdul Hamid Shaikh Ansari is recorded at Exhibit 199, under Section 164 of the Code of Criminal Procedure, before the learned Judicial Magistrate First Class, Padra.
6.3 He further submitted that as per said confessional statement, it can be said that the present appellant is involved in the serious offence. He also submitted that as per the provisions of Section 10 of the Evidence Act, the confessional statement is admissible evidence. He submitted that in view of the aforesaid facts and circumstance, the sentence imposed upon the appellant may not be reduced and the Appeal is required to be dismissed.
7.0 We have considered the submissions made by both the sides and also gone through the order passed by the learned Sessions Judge. We have minutely perused the contents stated in the panchnama at Exhibit 93 and it appears that the stolen articles were discovered from possession of the coaccused namely Jhahirmiya Umravmiya Malek of Ravli village. We have carefully scrutinized the confessional statement recorded under Section 164 of the Code of Criminal Procedure, of co accused Irshad Ahmad Abdul Hamid Shaikh Ansari before the learned Judicial Magistrate First Class, Padra. The said coaccused stated in his confessional statement that when he came from Rajasthan, one co accused – Munna met him and thereafter, one coaccused Jhahir joined with them and they went to proceed to Jamalpur, where they met co accused Nasirkhan and present appellant. Thereafter, they proceeded to Kheda Highway and after some conversion between them, they decided to chase the truck, wherein the articles of the complainant were loaded. When the truck reached near Karjan, the accused persons forcefully entered into the truck and instructed the driver of the truck to proceed further. When the accused reached near Anand, in the truck, the articles loaded in the truck were shifted to their Tata Sumo and thereby, they committed loot of the Muddamal and they fled away. Therefore, it is established that the present appellant played active role in the commission of the offence and said fact is supported by oral evidence of Investigating Officer recorded at Exhibit 93.
7.1 The accused Nos.1 to 5 were very well involved in the offence and out of 5 accused, the present appellant is accused No.2 and his role is reflected in the confessional statement, evidence of Investigating Officer as well as Panchnama of the place, from where the discovery of articles was made. The evidence led before the trial Court are corroborated with each other and therefore, it can be said that the present appellant is involved in a serious offence and therefore, the trial Court held the appellant guilty.
8.0 Here in this case, the conspiracy was hatched by the accused persons and therefore, it would be appropriate to deal with the question of conspiracy. Section 120B of IPC is the provision which provides for punishment for criminal conspiracy. Definition of ’criminal conspiracy’ given in Section 120A reads as follows:
"120AWhen two or more persons agree to do, or cause to be done,
(1) all illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
9.0 The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed.
9.1 From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.
9.2 The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable under section 120B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication.
9.3 Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
9.4 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.
10. In this case, from the statement of coconspirator at Exhibit 199 shows the role of the present appellant for shifting articles from the truck to Tata Sumo. That act of the present appellant shows overt act on his part and the same is also proved through Exhibit 199, confessional statement of coaccused.
11. In the case of K. Hasim Vs. State of Tamil Nadu reported in AIR 2005 Supreme Court 128(1), the Hon'ble Supreme Court discussed in detail with regard to definition of “Criminal Conspiracy” given in Section 120A of the Indian Penal Code.
12. For the issue regarding criminal conspiracy as defined in Section 120 A, we have gone through the decision in case of Lennart Schussler and Another Vs. Director of Enforcement and Another reported in AIR 1970 Supreme Court 549 (1970(1) SCC 152), wherein the Hon'ble Supreme Court has held at Head Note : D as under :
“The first of the offences defined in S 120A Penal Code which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means subject however to the proviso that where the agreement is not an agreement to commit an offence the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If in the furtherance of the conspiracy certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. It is also clear that an agreement to do an illegal act which amounts to a conspiracy will continue as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement. “
13. In connection of Section 10 of the Evidence Act, the statement of coconspirator is admissible evidence. Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by the one is admissible against the co conspirators.
14. The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof for the offence of conspiracy and that for any other offence : it can be established by direct evidence or by circumstantial evidence. But Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the coconspirators. The said section reads thus:
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when 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 the conspiracy as for the purpose of showing that any such person was a party to it."
15. This section, as the opening words indicate, will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his coconspirators.
15.1 Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "’in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law ; with the result, anything said, done or written by a coconspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.
15.2 Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy.
15.3 In short, the section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy ; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ; and (5) it can only be used against a coconspirator and not in his favour;
16. We have also referred the decision of the case of Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra reported in 2008 CRI. L.J. 3872 (2008(10) SCC 394), wherein the Hon'ble Supreme Court observed at para 23 as under :
“Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.”
17. In view of the above, it is crystal clear that the appellant – accused played active role in the commission of the offence, by meeting of minds, hatched criminal conspiracy and looted the goods/articles worth more than Rs.60 Lacs. Therefore, it can be said that the appellant committed serious offence and therefore, looking to the role attributed to the appellant, no liberal view can be taken so far this appellant is concerned.
17.1 Learned advocate Mr. Raval submitted that the panchnama is not proved by panchas. But looking to the evidence of Investigating Officer, the contents of the panchnama are proved. Therefore, it is not necessary to support the panchnama by the panchas, if the contents of panchnama are proved by the evidence of other witness. In reference to the same, we referred the decision of this Court in the case of Vinugiri Motigiri Vs. State of Gujarat reported in 2002(1) GLH 176 and observation made by this Court at Head Note C, which is as under :
“(C) Indian Evidence Act, 1872, Ss.27 and 14 – Indian Penal Code, 1860 – Ss. 302 and 149 – Discovery of weapon – Pancha witnesses turning hostile – Whether evidence of recovery can be relied upon – Recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of CRPC – When a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the version to be correct if it is not otherwise shown to be unreliable – On fact, held that though witnesses have turned hostile, even without the discovery of panchnama, the evidence found on record is reliable to connect all the accused with the crime – Appeals dismissed – Conviction confirmed. “
18. We have also perused the provisions of Section 27 of the Evidence Act and the various requirements of the Section can be summed up as follows :
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused’s own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved.
19. We have perused the oral and documentary evidence led before the trial Court and also perused the judgment and order passed in Criminal Appeal No.956 of 2007 and allied matter. It appears that the muddamal articles were recovered from the house of accused No.5 and here in this case, the role of the appellant is clearly reflected from the confessional statement of the accused No.5.
19.1 Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. Here in the presnet case, the appellant as preplanned, went with other accused i.e. Nasirkhan at Jamalpur and by Tata Sumo, all the accused went to Kheda Highway. The truck with articles muddamal reached near Anand cross road, the accused persons forcefully entered into the truck. It also reflects from the said confession statement, that the present appellant had shifted the muddamal/article from the said truck to Tata Sumo and from that place, present appellant and other accused fled away.
19.2 Even as per the provisions of Section 120, the conspiracy on the part of the accused including appellant is clearly reflected and as per Sections 10 and 27 of the Evidence Act, the commission of the offence by the accused is clearly established. Therefore, looking to the seriousness of the offence in which the appellant is involved, we are of the opinion that no liberal view of reducing sentence is taken in favour of the present appellant.
19.3 From the statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has not explained that he has not committed any role in the commission of the offence. No doubt, the panchas of panchnama turned hostile, but the evidence of the Investigating Officer examined at Exhibit 93, has supported the case of the prosecution and his evidence is corroborated with the confession statement recorded at Exhibit 199 and other documentary evidence produced on record. A trustworthy evidence establishing all links of circumstantial evidence is available the confession of a coaccused as to conspiracy even without corroborative evidence can be taken into consideration.
20. Learned trial Judge has properly appreciated the evidence on record and has rightly convicted and sentenced the appellant. Therefore, the sentence imposed by the trial Court do not warrant inference. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
21. In view of the above, we do not find any substance in this appeal. Hence, the Appeal is dismissed. The judgment and order passed by the learned Additional Sessions Judge, Vadodara, Fast Track Court No.8, passed in Sessions Case No.138 of 2004 dated 14.6.2007 is hereby confirmed. R & P to be sent back to the trial court forthwith.
(K.S. JHAVERI,J.) ynvyas (Z.K.SAIYED,J.)