Holding

The appellant could not be convicted under Section 302 read with Section 120B IPC as the co‑accused were not charged with conspiracy and the evidence relied upon was unreliable.

Summary

The appellant, Baldev Singh, was convicted under Section 302 read with Section 120B IPC for the murder of his brother Pritam Singh. The conviction was based mainly on the testimony of a taxi driver (PW‑26) who claimed to have overheard a conspiratorial discussion, and on an alleged extra‑judicial confession of a co‑accused recorded by another witness (PW‑22). The Supreme Court held that the co‑accused were not charged under Section 120B, so the appellant could not be convicted for conspiracy, and that the extra‑judicial confession was unreliable and not corroborated. Moreover, the taxi driver’s evidence was deemed untrustworthy. Consequently, the conviction was set aside and the appellant was ordered to be released.

Issues considered

Whether a person can be convicted under Section 120B IPC when the co‑accused were not charged under that provision.
Whether an extra‑judicial confession of a co‑accused, without corroboration, is sufficient for conviction under Section 30 of the Evidence Act.
Whether the testimony of PW‑26 (taxi driver) is reliable enough to establish a criminal conspiracy.
Whether the circumstantial evidence presented can satisfy the requirement of a meeting of minds for a conspiracy.

Legislation cited

Arms Act, 1959s. 25, s. 27
Code of Criminal Procedure, 1973s. 173
Indian Evidence Act, 1872s. 30
Indian Penal Code, 1860s. 120B, s. 302, s. 34, s. 450

Subjects

criminal conspiracyextra‑judicial confessionreliability of witnessSection 120B IPCcircumstantial evidenceconviction set aside

Judgment

[2009] 7 S.C.R. 855

·4
BALDEV SINGH A
v.
STATE OF PUNJAB
,,, Criminal Appeal No. 553 of 2008
MAY 6, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Penal Code, 1860 :

• s. 30211208 - Conviction under, of conspirator by courts
.· b~low-:- However, one main accused convicted u/s. 302 and
w c
otheru/s. 302134 along with s.450 and also under Arms Act -
Conviction of conspirator, challenged to - Held: Conspirator
afOne could not have f)een convicted uls. 30211208,_ when
· main accused were not convicted uls.1208 ..., Main accused
made confession before prosecution witness ..., Evidence of
prosecution witness was not reliable, thus, could not have D
_, formed basis of recording conviction against conspirator -
Conspirator could not be convicted on basis of purported extra
judicial confession by itself- Hence, order of High Court not
sustainable and set aside - Evidence.
E
s. 1208 - Conspiracy - Essw1tia/ ingredients of offence
- Stated.·
..
Evidence - Extra judicial confession - Reliability of -
.. Held.' Evidence of extra judicial confession is generally of a
~
weak nature - To base conviction thereupon, it is to be F
corroborated in material particulars - Extra judicial confession
must be found to be reliable.
The question which arose for consideration in this
·.. ·appeal was whether the courts below were justified in
convicting appellant-conspirator for commission of G
offence uls 302/1208 IPC and sentencing him to under
~-
rigorous imprisonment for life with fine of Rs. 50001-.
Allowing the appeal, the Court
855 H
856 SUPREME COURT REPORTS [2009] 7 S.C.R.

A HELD: 1.1 An offence of conspiracy which is a
separate and distinct offence, thus, would require
involvement of more than one person. Criminal conspiracy
is an independent offence. It is punishable separately; its
ingredients being: agreement between two or more persons
B and agreement must relate to doing or causing to be done
either an illegal act; an act which is not illegal in itself but is
done by illegal means. A conspiracy ordinarily is hatched
in secrecy. The court for the purpose of arriving at a finding
as to whether the said offence has been committed or not
C may take into consideration the circumstantial evidence.
While however doing so, it must be borne in mind that
meeting of the mind is essential; mere knowledge or
discussion would not be. [Para 9] [866-D-F]
2.1 The incident took place on 17 .2.2001. Appellant
D had left India for Vancouver (Canada), a day prior to the
date of incident. He came back to India in August 2004
when he was arrested. The main accused, namely, AS and
HS however, were tried separately. HS was found guilty
u/s.302 IPC and AS was found guilty u/s.302/34 IPC. They
E were also found guilty u/s 450 IPC. Whereas HS was also
found guilty u/s. 27 of the Arms Act, AS was found guilty
u/s. 25 thereof. [Para 6] [864-C-D]
2.2 AS and HS were not charged for commission of
offence u/s. 120BIPC. Both the courts below passed the
F judgment of conviction and sentence as against the
appellant relying on the evidence of LK-PW-26, who was
a taxi driver and is said to have overheard the conversation
amongst the accused in regard to hatching of a purported
conspiracy as also on the basis of an extra judicial
G confession purported to have been made by AS before SS-
P.W.22. It is admitted that apart from the said two pieces of
evidence, no other evidence was brought on record
against the appellant. More so, evidence of PW-26 does
not inspire confidence. [Paras 6 and 8] [864-E-G; 865-G]
H
BALDEV SINGH V. STATE OF PUNJAB 857

2.3 Neither AS nor HS were charged for commission A
of offence punishable u/s.1208. Therefore, appellant
alone could' not have been convicted u/s.302/1208 IPC. A
purported extra judicial confession was made by AS
before SS-PW.22. The distance between the village where
AS was residing and that of the SS was said to be 100 B
kms. He allegedly visited SS on 18.2.2001 at about 9.00
a.m. For no apparent reason, he had disclosed that he
along with HS had committed the murder of PS. No details
•
,• thereof had been furnished. A purported disclosure was
also made that the murder was committed at the instance
of the appellant. He was asked to come on the next day. He
c
neither visited him thereafter nor was he produced before
the police by PW.22. There is nothing on record to show
that such a purported extra judicial confession by AS was
conveyed to the police authorities; PW. 22's statement
~ having been recorded on 19.2.2001. If he was so familiar D
with the family qf AS there was absolutely no reason why
he was not in a position to state as to what was the
composition of his family. He admitted that he had never
visited the village of AS. [Paras 9 and 10] [870-A-E]
2.4 Evidence of extra judicial confession is generally E
of a weak nature. No conviction ordinarily can be based
solely thereupon unless the same is corroborated in
material particulars. Extra judicial confession must be
found to be reliable. PW. 22 was examined by police
authorities also in some other cases. A suggestion was put F
to him that he was a police tout. Therefore, his evidence
c/
cannot be relied upon. If his evidence cannot be relied upon,
the same could not have formed foundation of recording a
judgment of conviction and sentence and that too in a case
of conspiracy. The evidence of purported extra judicial G
,. confession by itself cannot be held to be sufficient for
recording a judgment of conviction against a co-accused
in terms of section 30 of the Evidence Act. The impugned
judgment being unsustainable, is set aside. [Paras 10, 11
and 12] [870-F-H; 871-C] H
858 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Yogesh @ Sachin Jagdish Joshi v State of Maharashtra •
(2008) 6 SCALE 469; Nirmal Singh Kah/on vs. State of Punjab
& Ors.(2008) 14 SCALE 639; Ram Lal Narang vs. State (Delhi
Administration) (1979) 2 SCC 322; K.R. Purushothaman vs.
State of Kera/a (2005) 12 SCC 631; Darshan Singh @ Bhasuri
B Ors. vs. State of Punjab (1983) 2 SCR 605; Jaspa/ Singh alias
Pali vs. State of Punjab ( 1997) 1 SCC 510 - referred to.
Case Law Reference
(2008) 6 SCALE 469 Referred to. Para 9
> .
..."
c (2008) 14 SCALE 639 Referred to. Para 9
(1979) 2 sec 322 Referred to. Para 9
(2005) 12 sec 631 Referred to. Para 9
(1983) 2 SCR 605 Referred to. Para 9
D
(1997) 1 sec 510 Referred to. Para 10
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 553 of 2008
E From the Judgement and Order dated 14.12.2006 of the
Hon'ble High Court of Punjab & Haryana at Chandigarh in ·,
Criminal Appeal No. 298 of 2006.
T.S. Doabia, Sudarshan Singh Rawat, Abha R. Sharma,
with him for the Appellant.
F
Kuldip Singh, R.K. Pandey, T.P. Mishra, H.S. Sandhu,
Sanjay Katyal, for the Respondent.
The Judgement of the Court was delivered by
G S.B. SINHA, J.
1. This appeal is directed against the judgment and order ..
dated 14.12.2006 passed by a Division Bench of the High Court
of Punjab & Haryana at Chandigarh in Criminal Appeal No. 298-
DB of 2006 affirming the judgment and order dated 30.3.2006
H passed by the Additional Sessions Judge, Jalandhar convicting
BALDEV SINGH V. STATE OF PUNJAB 859
[S.S . SINHA. J]
~

the appellant herein for commission of an offence under Section A
302 read with Section 1208 of the Indian Penal Code (for short,
"IPC") and sentencing him to undergo rigorous imprisonment
for life and pay a fine of Rs.5000/-, and in default of paym'ent of
fine, to further undergo rigorous imprisonment for six months.
2. Appellant - Baldev Singh and Pritam Singh (the B
deceased) were brothers. Both were Non Resident Indians
(N .R.I.) .
•
A civil suit was filed by the deceased Pritam Singh against
his nephew Harbhinder Singh, Tehal Singh and his brother c
Baldev Singh seeking declaration that the sale deed executed
on 21st October, 1997 on the basis of a Power of Attorney dated
15th October 1990 is null and void as it was allegedly forged
and fabricated.

On or about 17.2.2001 at about 11.00 a.m., when Pritam D
••
Singh was making preparation to leave his house in Paragpur
for Jalandhar (Punjab), he was killed at his residence. The said
incident was allegedly witnessed by Nath Ram (P.W. 25), who
was a servant of Pritam Singh for last 40 years and Parminder
@ Bittu, the driver of the deceased. E
A First lnforn:iation Report ("FIR" for short) was lodged
marked as FIR No. 131 of 2001 on 17.2.2001 at about 1.40
p.m. by P.W. 25, wherein he stated:
"'
"Since last forty years, I have been working as Servant F
with Pritam Singh, resident of Pragpur. Pritam Singh is an
NRI who is residing in England. He has kothi and land in
village Pragpur. I look after it and Pritam Singh also visits
· the place. Pritam Singh has been living in his kothi at
Pragpur for the last about 5-6 years. Whenever in the
G
morning, Pritam Singh used to go out in car, then after his
crossing I used to close the gate from inside. Today, at
about 11 A.M., Pritam Singh after taking meals got ready
to go to Jalandhar and I also came out from the Kathi.
Parminder Singh @ Bittu driver was standing outside,
H
860 SUPREME COURT REPORTS [2009] 7 S.C.R.

A who also accompanied us. In the meanwhile two youngmen
came inside through main gate and came to us. One of
these youngmen was clean shaven who had covered
himself with thin blanket (loi). He was having good height,
wheatish complexion and putting helmet on his head. The
B second one was a Sikh having wheatish complexion
wearing turban on his head and having beared. Clean
shaven person took out small double barrel gun .12 bore
from loi wrapped by him and fired a shot at Pritam Singh.
Then Pritam Singh saved himself cleverly and went inside.
c Both these young men chased Pritam Singh and went inside
through Kainchi gate. Then clean shaven person gave
fired another shot at Pritam Singh, which hit on the right
side of the back of Pritam Singh as a result of which,
Pritam Singh felt down straight on the floor and blood
started oozing from back and chest. Both these youngmen
D
ran away together with their arms and ammunition through
main gate. We both saw Pritam Singh. The abdomen of
Pritam Singh was ruptured and he had died. Parminder
Singh driver and I have witnessed this occurrence. The
cause of grudge is that a dispute between both real brothers
E Pritam Singh and Baldev Singh regarding Kothi and land
is pending in the Court at Jalandhar, which was fixed for
hearing on yesterday i.e. 15.2.2001 (sic 16.2.2001). In
the year 1988, Baldev Singh along with his sons, son-in-
law and other persons duly armed with ammunition had
F tried to take possession of kothi and land. Baldev Singh
and his accomplices had fired shots and Gurmej Singh of
Pritam Singh's party had died, and one person had
become injured. In this regard, case FIR No.221/88, under
Section 302/307, 148/149 IPC 25/27 /54/59 Arms Act was
G registered in the Police Station, in which Baldev Singh
was convicted and his sons are absconders and have
fled away to foreign country. I am sure that even now Baldev
Singh, by sending both these youngmen by giving them
allurement has got murdered Pritam Singh with gun-shot.
H I can identify both these youngmen if they come across
BALDEV SINGH V. STATE OF PUNJAB 861
[S.B. SINHA, J.]

me. Action be taken. I have heard my statement, which is A
correct."
The Investigating Officer prepared an inquest report on
17.2.2001. He recovered the clothes and a pair of spectacles
with the left glass missing belonging to the deceased. He noticed
a gun shot injury on the right side of the back of the deceased. B
His abdomen was ruptured as pellet& had struck in the back
and right hand. The Investigating Officer also picked up the blood
stained soil from the spot, a blood stained spectacles cover
and two empty .12 bore cartridges. He also recovered from
outside the room a Canadian driving licence bearing No. c
6130617 allegedly belonging to Harbhinder Singh. The dead
body was thereafter sent for post mortem examination.
On 18.2.2001, the post mortem of the deceased was
conducted by a medical board consisting of Dr. H.S. Kahlon
D
(P.W.1 ), Dr. Rajnish and Dr. Ranbir Singh. It was of the opinion
that the death was caused due to shock and hemorrhage,
following fire arm injuries which was sufficient to cause death in
the ordinary course of business. It was also stated in the report
that the death had occurred immediately and the time of death
is 24 hours prior to holding of the post mortem examination. E

On 20.2.2001, Harbhinder Singh was arrested from the
Indira Gandhi International Air Port at Delhi while he was about
to leave for London. On the same day, one Avtar Singh was
also arrested by the police. F
On 23.2.2001, both~Harbhinder Singh as well as Avtar
Singh made disclosure statements to the police. Pursuant to
the recording of the alleged disclosure, some recoveries were
made on the pointing out of the accused persons, including two
empty cartridges allegedly fired from the gun. G

\. 3. The learned Additional Sessions Judge framed charges
against Harbhinder Singh and Avtar Singh under Section 302/
450 IPC read with 34 IPC and Sections 25/27 of the Arms Act.
A large number of witnesses were examined during the H
862 SUPREME COURT REPORTS (2009] 7 S.C.R.

A course of the trial. Learned Additional Sessions Judge opining .._

that Harbhinder Singh and Avtar Singh were guilty, convicted
them for commission of offences under Sections 302/450 IPC
and under Section 25 of the Arms Act.
4. Indisputably, appellant- Baldev Singh left India on 16th
B February 2001 for Vancouver. He returned to India on 19th August,
2004. His arrival at Delhi Airport was communicated to SSP,
Jalandhar. On the basis of this information, ASI Harpal Singh
(P.W.
. 13) afterth obtaining production warrants arrested Baldev ,
Singh on 20 August, 2004. A supplementary report under
c Section 173 of the Code of Criminal Procedure ("Code" for short)
was filed against him on 24th August 2005. Charge was framed
against him under Section 120-B IPC on 19th September, 2005.
He pleaded not guilty and claimed to be tried.

The learned Sessions Judge conducted the trial against
D
the appellant separately and examined as many as 28
prosecution witnesses. The learned Sessions Judge found him
guilty for commission of an offence under Section 302 read with
1208 IPC and sentenced him to undergo life imprisonment and
to pay a fine of Rs.5000/-, and in default whereof to undergo
E rigorous imprisonment for 6 months.

In arriving at the said finding , the following evidences were """
taken into consideration:

i) Deceased was brother of the appellant;
F
ii) He had a motive to get the brother killed;
iii) Lalit Kumar (P.W.26) being an independent witness,
there was no reason to disbelieve his evidence;
iv) Statement of Avtar Singh is admissible under Section
G
30 of the Evidence Act;
-I
v) Gun with which the shots were fired earlier belonged
to the appellant.
5. As noticed hereinbefore, criminal appeal filed by the
H
BALDEV SINGH V. STATE OF PUNJAB 863
[S.B. SINHA, J]

~
.. appellant has been dismissed by the High Court by reason of A
the impugned judgment inter alia holding:
"When all the evidence is taken together the conclusion
that is irresistible is that Baldev Singh master-minded his
brother's murder. Baldev Siingh was a convict who was
undergoing life sentence, was on bail after his sentence B
was suspended. Baldev Singh had managed to convince
. Avtar Singh, a fellow jailmate, to also join Harbhinder Singh,
who arrived in India on February 7, Baldev Singh purchased
the weapon, his son took the weapon and shot the deceased,
Baldev Singh left India a day before the occurrence while c
Harbhinder Singh tried to flee three days after occurrence.
The latter was arrested but the former had successfully
managed to escape. Baldev Singh's gun was recovered
from the possession of his son Harbhinder Singh.
D
The above chain of circumstances is so complete that
• one cannot take a view other than that Pritam Singh's
murder was committed on the basis of a conspiracy in
which Pritam Singh's brother Baldev Singh was a
participant, may be the leader. The circumstances are
crystal clear and there does not appear to be any ambiguity E
,_ and inconsistency in the chain. The circumstantial evidence
also finds support from the evidence of Sukhdev Singh
(PW-22) and Lalit Kumar (PW-26). Therefore, the
argument of the learned counsel for the appellant that the
appellant was not in the country when Pritam Singh was F
murdered and could not have conspired in the murder
cannot be accepted. Conspirators conspire in secrecy
and disperse after the plan has been finalized and
separate tasks are assigned to each members of the
conspiracy. The conspiracy in this case was to murder G
Pritam Singh. It was between Baldev Singh and his son
\.
and also between Baldev Singh and Avtar Singh. Therefore,
the obvious conclusion in this case, on the basis of strong
circumstantial evidence, would be that Baldev Singh indeed
was a member of the conspiracy. H
864 SUPREME COURT REPORTS [2009] 7 S.C.R.

A In the light of the above, evidence of Sukhdev Singh and • ,.
Lalit Kumar provides support to the circumstantial
evidence. The argument that Harbhinder Singh had not
acted at the behest of his father finds no support, either
from the evidence on record or from any other
B circumstance. This argument is hollow as the circumstantial
evidence against the appellant is very strong regarding
his participation as a conspirator in his brother's murder."
6. Indisputably, the incident took place on 17.2.2001.
Appellant had left India for Vancouver (Canada) on 16.2.2001,
C i.e., a day prior to the date of incident. He came back to India in
August 2004 when he was arrested. The main accused, namely,
Avtar Singh and Harbhinder Singh, however, were tried
separately. We may notice that Harbhinder Singh was found
guilty under Section 302 IPC and Avtar Singh was found guilty
D under Section 302/34 IPC. They were also found guilty under
Section 450 IPC. Whereas Harbhinder Singh was also found
guilty under Section 27 of the Arms Act, Avtar Singh was found
guilty under Section 25 thereof.
It is, however, of some significance to notice that Avtar
E Singh and Harbhinder Singh were not charged for commission
of offence under Section 1208 IPC. The legal position in this
regard will be adverted to a little later. At this stage, we may
also notice that both the courts below have passed the
aforementioned judgment of conviction and sentence as against
F the appellant relying inter alia on the evidence of Lalit Kumar
(PW-26), who was a taxi driver and is said to have overheard
the conversation amongst the accused in regard to hatching of
a purported conspiracy as also on the basis of an extra judicial
confession purported to have been made by Avtar Singh before
G Sukhdev Singh (P.W.22). It now stands admitted that apart from
the aforementioned two pieces of evidence, no other evidence
was brought on record against the appellant.
7. P.W. 26 - Lal it Kumar -was a taxi driver. His statement
was recorded in the court on 15.1.2002. Accused persons are
H
BALDEV SINGH V. STATE OF PUNJAB 865
[S.B. SINHA, J.]

r' .. said to have hired his taxi from Goraya for going to Paragpur. A
On the way, they stopped at a 'Dhaba'. According to him,
•.1 although he was a taxi driver he shared food and drinks with the
accused. A plan to cause the death of Pritam Singh was said to
have been discussed by them only at the said Dhaba. On the
one hand, he stated that he overheard the accused discussing B
the said subject, but on the other, as noticed hereinbefore, he
shared meals and drinks with them. In his cross-examination
he admitted that he did not know the accused persons from
~.
before; he did not remember the number of his taxi; he was not
an owner of the taxi; he had plied taxi only for five days. It is , c
borne out from records that he came to court with Rana, who
had shown active interest in the case.

- He, when confronted with his statements made before the
Investigating Officer, stated:
"Out of my two statements made above my statement with
D
regard to accused having consumed the liquor in the ahata
is correct and my other statement of consuming liquor by
accused in dhaba is wrong. 3-4 more people were there
in the said ahata."
E
Indisputably, he did not reveal the said fact to any other
," person. He made his statement for the first time before the
police. He made a statement thereafter only in the court.
~ 8. Although he did not have any acquaintance with the
accused persons; he not only could identify the accused in court F
but appears to have been knowing their nick names as also
their avocation of life. Admittedly, Rana is his partner in a
business concern known as Saraswati Mill Store, the office of
which is located in the building of Rana. His evidence, in our
"
opinion, does not inspire confidence. G

~ 9. Conspiracy is defined in Section 120A of the IPC to
mean:
"120A. Definition of criminal conspiracy.- When two
or more persons agree to do, or cause to be done,- H
866 SUPREME COURT REPORTS [2009] 7 S.C.R.

A (1) an illegal act, or • e'
'

(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
B 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.
Explanation.-lt is immaterial whether the illegal act is the
"
ultimate object of such agreement, or is merely incidental
c to that object."
An offence of conspiracy which is a separate and distinct
offence, thus, would require involvement of more than one person.
Criminal conspiracy is an independent offence. It is
D punishable separately; its ingredients being:-
-
(i) an agreement between two or more persons.
(ii) the agreement must relate to doing or causing to be
done either (a) an illegal act; (b) an act which is not
E illegal in itself but is done by illegal means.
It is now, however, well settled that a conspiracy ordinarily
is hatched in secrecy. The court for the purpose of arriving at a r
finding as to whether the said offence has been committed or
not may take into consideration the circumstantial evidence.
F While however doing so, it must be borne in mind that meeting
of the mind is essential; mere knowledge or discussion would
not be sufficient.
Adverting to the said question once again, we may,
G however, notice that recently in Yogesh @ Sachin Jagdish Joshi
v. State of Maharashtra [(2008) 6 SCALE 469], a Division Bench
of this Court held: .J

"23. Thus, it is manifest that the meeting of minds of two
or more persons for doing an illegal act or an act by illegal
H means is sine qua non of the criminal conspiracy but it
r

BALDEV SINGH V. STATE OF PUNJAB 867
[S.B. SINHA, J.]

'f . may not be possible to prove the agreement between A
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 B
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." c
Yet again in Nirmal Singh Kah/on vs. State of Punjab &
Ors. ((2008) 14 SCALE 639], this Court following Ram Lal
Narang vs. State (Delhi Administration [(1979) 2 SCC 322] held
that a conspiracy may be a general one and a separate one
meaning thereby a larger conspiracy and a smaller conspiracy D
which may develop in successive stages. For the aforementioned
purpose, the conduct of the parties also assumes some relevance.
In K.R. Purushothaman vs. State of Kera/a [(2005) 12
SCC 631], this Court held:
E

- ~
"11. Section 120A of 1.P.C. defines 'criminal conspiracy.'
According to this Section when two or more persons agree
to do, or cause to be done (i) an illegal act, or (ii) an act
which is not illegal by illegal means, such an agreement is
designed a criminal conspiracy. In Major E. G Barsay v. F
State of Bombay, (1962) 2 SCR 195, Subba Rao J.,
speaking for the Court has said:
"The gist of the offence is an agreement to break the law.
The parties.to such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be done has G
not been done. So too, it is not an ingredient of the offence
that all the parties should agree to do a single illegal act,
It may comprise the commission of a number of acts."
• xxx xxx xxx H
868 SUPREME COURT REPORTS [2009] 7 S. C.R.

A 13. To constitute a conspiracy, meeting of mind of two or "
more persons for doing an illegal act or an act by illegal
means is the first and primary condition and it is not
necessary that all the conspirators must know each and
every detail of conspiracy. Neither it is necessary that every
B one of the conspirators takes active part in the commission
of each and every conspiratorial acts. The agreement
amongst the conspirators can be inferred by necessary
implications. In most of the cases, the conspiracies are
proved by the circumstantial evidence, as the conspiracy
c is seldom an open affair, The existence of conspiracy and
its objects are usually deducted from the circumstances
of the case and the conduct of the accused involved in the
conspiracy. While appreciating the evidence of the
conspiracy, it is incumbent on the Court to keep in mind ,.
the well-known rule governing circumstantial evidence viz.,
D
each and every incriminating circumstance must be clearly
established by reliable evidence and the circumstances
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can
be safely drawn, and no other hypothesis against the guilt
E is possible. The criminal conspiracy is an independent
offence in Indian Penal Code. The unlawful agreement is
sine quo non for constituting offence under Indian Penal
Code and not an accomplishment. Conspiracy consists
of the scheme or adjustment between two or more persons
F which may be express or implied or partly express and
partly implied. Mere knowledge, even discussion, of the
Plan would not per se constitute conspiracy. The offence
of conspiracy shall continue till the termination of
agreement."
G
As noticed hereinbefore, neither Avtar Singh nor
Harbhinder Singh were charged for commission of offence
punishable under Section 1208 IPC. In our opinion, therefore,
appellant alone could not have been convicted under Section
302 read with Section 1208 of the IPC.
H
BALDEV SINGH V STATE OF PUNJAB 869
[S.B. SINHA, J.]

In Oarshan Singh @ Bhasuri Ors. vs. State of Punjab A
[(1983) 2 SCR 605], this Court cautioned that the court ordinarily
should not convict a person for commission of offence of
conspiracy on the basis of a weak evidence, stating:
"The evidence regarding conspiracy is as weak as the
evidence about the dying declaration of Sohan Singh, Surat B
Singh (P.W. 27) speaks of a meeting between the co-
conspirators in the house of accused No. 1, Darshan Singh
alias Bhasuri. We cannot believe that in the presence of
an utter stranger like Surat Singh, the conspirators would
discuss their plans to commit these murders, throwing all C
caution to the winds. The answer of the High Co1Jrt is that
the conspirators were taking liquor while discussing the
conspiracy and,
'When liquor is taken, then under its influence sometimes
most secret things are divulged in the presence of a person D
who is not so intimately connected. It is often said, when
liquor goes in, truth comes out.'
This is somewhat artless. Liquor is no lie-detector and we
cannot assume that accused Nos. 1 and 2 were so drunk
as to overlook the presence of a stranger in their midst yet E
not so drunk so as to be unable to discuss the execution
of their criminal design. Besides, Surat Singh forgot all
about the incident and was contacted by the police a few
days later. The learned Sessions Judge was right in holding
that Surat Singh's evidence suffers from certain infirmities, F
because of which one could not place implicit reliance
upon him. We would go further and say that his evidence
is too unnatural to merit serious attention. Apart from the
evidence of motive, Surat Singh's evidence in regard to
the conspiracy is the only evidence against accused No. G
1 Bhasuri and accused No. 2 Joga Singh. It is on that
evidence that these two accused have been convicted
under Section 120-8 read with Section 302 of the Penal
Code, the former being sentenced to death and the latter,
because of his young age, to life imprisonment," H
870 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 10. We are now left with the question of purported extra •
judicial confession by the co-accused Avtar Singh. Such a
purported extra judicial confession was made by Avtar Singh
before Sukhdev Singh (P.W.22). The distance between the
village wherein Avtar Singh was a resident and that of the said
B Sukhdev Singh was said to be 100 kms. He allegedly visited
Sukhdev Singh on 18.2.2001 at about 9.00 a.m. For no apparent
reason, he had disclosed that he along with Bhinda (Harbhinder
Singh) had committed the murder of Pritam Singh. No details
thereof had been furnished. A purported disclosure was also •
c made that the murder was committed at the instance of the
appellant herein. He was asked to come on the next day. He
neither visited him thereafter nor was he produced before the
police by P.W.22. There is nothing on record to show that such
a purported extra judicial confession by Avtar Singh was
conveyed to the police authorities; P.W. 22's statement having
D
been recorded on 19.2.2001.
If he was so familiar with the family of Avtar Singh, there
was absolutely no reason whey he was not in a position to state
as to what was the composition of his family. He admitted that
E he had never visited the village of Avtar Singh.
Evidence of extra judicial confession is generally of a weak
nature. No conviction ordinarily can be based solely thereupon
unless the same is corroborated in material particulars.
j
F 11. Extra judicial confession must be found to be reliable.
P.W. 22 was examined by the police authorities also in some
other cases. A suggestion was put to him that he was a police
tout. His evidence, therefore, in our opinion, cannot be relied
upon. If his evidence cannot be relied upon, the same could not
have formed foundation of recording a judgment of conviction
G
and sentence and that too in a case of conspiracy. We must
also notice that the evidence of purported extra judicial
confession by itself cannot be held to be sufficient for recording
a judgment of conviction against a co-accused in terms of
Section 30 of the Evidence Act.
H
BALDEV SINGH V. STATE OF PUNJAB 871
[S.B. SINHA, J]

.. In Jaspal Singh alias· Pali vs. State of Punjab ((1997) 1 A
SCC 510], this Court held:
"15. The third contention of Mr. Sodhi viz., that it is highly
improbable that Jaspal Singh (A-1) would have gone to
this witness alongwith his co-accused to confess the guilt,
is equally formidable. Chhota Singh (PW 7) has not given 8
any reason as to why and how Jaspal Singh (A-1) and
other co-accused have reposed such a confidence in him
and confessed their guilt. After going through the evidence
of Chhota Singh (PW 7), we do not find it safe to hold any
of the appellants guilty in the present crime." C
12. For the aforementioned reasons, the impugned
judgment being unsustainable is set asipe. The appeal is
allowed. The appellant is in custody; he is directed to be set at
liberty unless wanted in connection with any other case.
D
N.J. Appeal allowed.