BALKAR SINGHversusSTATE OF HARYANA

                  [2014] 13 S.C.R.1433


                     BALKAR SINGH                             A
                             v.
                   STATE OF HARYANA
             (Criminal Appeal No. 606 of 2008)
                  NOVEMBER 17, 2014                           B
    [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
            ABHAY MANOHAR SAPRE, JJ.]
                        ..
      Penal Code, 1860 - ss.1208 and 302 rlw s.34 -
Murder- 14 accused-Allegations of conspiracy- Conviction      c
of A-10 for offence u/ss. 1208 and 302 read with s. 34 along
with A-1 to A~4 - Trial Court, as well as the High Court,
convicted A-10 based on circumslantial evidence -
Challenge to - Held: Basic ingredients to support the theory
                                                              o
of conspiracy were totally lacking either in the form of material
evidence or otherwise- Nothing to suggest that A-10 held a
conspiracy with A-1 to A-4 - On the other hand, specific case
of the prosecution was that at the instance of A-14, the head
conspirator, A-10 executed the plan - However, since A-14
was found to have played no role in the whole case, no scope E
to pin down A-10 alone to the theory of conspiracy- On facts,
even going by the conclusions of the trial Court and the High
Court, the a/legation of conspiracy levelled against AS to A9
and A11 toA14 was ruled out-As far asA1 toA4 and A10
were concerned, no iota of evidence to link them to any act F
of conspiracy leave alone, the place, time and the nature of
conspiracy- Once charge of conspiracy u/s. 1208 /PC was
totally ruled out against A 10, he alone could not be charged
and found guilty of that charge and consequently of the charge
uls.302 read with s.34 /RC- Charge of conspiracy levelled G
                           1
against A-10 u/s. 1208, IPC and the further charge under
s.302 read with s.34, /PC not conclusively proved -
Conviction and sentence imposed on A-10 accordingly set
 aside.
                                                               H
                             1433
1434         SUPREME COURT REPORTS                [2014] 13 S.C.R.


 A           Evidence - Circumstantial evidence - Principles
       relating to conviction to be imposed based on circumstantial
       evidence, extricated.
            Sharad Birdhichand Sarda v. State of Maharashtra
            (1984) 4 sec 116 : 1985 (1) SCR 88; Arvind
 B          Kumar Anuplal Poddar v. State of Maharashtra
            (2012) 11SCC172; 2012 (12) SCR 299 Shanti
            Devi w/o Shanker Lal v. State of Rajasthan (2012)
            12 SCC 158: 2012 (9) SCR 226 - referred to.
                       CASE LAW REFERENCE
 c
       1985 (1) SCR 88            referred to           Para 7
       2012 (12) SCR·299          referred to           Para 8
       2012 (9) SCR 226           referred to           Para 8
 D         CRIMINAL APPELLATE JURISDICTION : Criminal
       Appeal No. 606 of 2008.
            From the Judgment and Order dated 25.05.2007 of the
       High Court of Punjab and Haryana at Chandigarh in Criminal
       Appeal No. 293-DB of 1997. ·
 E          Sushil Kumar, Sr.Adv., Sanjay Jain.Adv. fortheAppellant.
            Madhurima Tatia, Syed Tanweer Ahmad and Mohd.
       Khairati (for B. Krishna Prasad) Advs. for the Respondent.
            The Judgment of the Court was delivered by
 F          FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
          1. The present appeal was preferred by A-1 to A-4 in
   which A-10 is t.he Appellant was listed along with Criminal
   AP,peal Nos.1005 of 2010, 992 of 2010, 986 of 2010 and SLP
   (Crl.) No.270 of 2009. All the above appeals were taken up for
 G hearing together. Mr. Sushil Kumar, learned Senior Counsel
   appearing for the Appellant herein submitted that A-1 to A-4
   having served their sentence, nothing survived in their appeals
   and,.therefore, the said four appeals were dismissed as having
   become infructuous. The. present appeal filed by A-10 was,
 H
         BALKAR SINGH v. STATE OF HARYANA                          1435
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

therefore, heard. A-10 was convicted for the killing of one A
Satinder Sekhon of Ambala in conspiracy with A-1 to A-4 for
the offences under Section 1208 read with Section 302 of the
Indian Penal Code (hereinafter referred to as 'IPC').
      2. The brief facts which are required to be stated are
that the deceased was the owner of a petrol pump which he          B
started on 08.03.1992. The occurrence took place on
16.07.1994 at 11.30 a.m. On that day the deceased went to
Dhillon Service Station, another petrol pump along with his
brother Harinder Singh Sekhon (PW-22) and an employee by
the name of Surjit Singh (PW-25). They travelled in a Maruti       C
Car bearing Registration No. HNA 7878. The deceased went
to the said petrol pump, which was owned by Ravinder Singh
Dhillon (PW-23) who was an eye witness to the occurrence for
making payment for the mobil oil which he purchased from
there. The deceased along with his brother was sitting inside      D
the cabin of the petrol pump and was conversing with PW-23.
A-1 toA-4 i.e. Gurdev Singh, Sohan Singh, Naib Singh and
Vakil Singh went to the said petrol pump in a Maruti 800 bearing
fake Registration No.CH01-J-9846 (real Registration No.HR-
 34-0010) owned by Swaran Singh (PW-36). Two of them asked          E
for petrol and when they were told that the petrol was out of
stock, the said two persons went inside the office cabin and
asked for some coolant. While PW-23 was requesting the
salesman Rajneesh Kumar Dutta (PW-24) to give the coolant,
one of the two intruders who was armed with a knife started         F
stabbing the deceased while the other one caught hold of the
deceased from behind. In the meanwhile, the two other
 occupants of the car, one of whom was armed with a gun and
 another with a danda, also entered the office cabin and the
 one who was holding a gun posed a threat not to raise any         G
 alarm and one of them remarked thatthe deceased had been
taught a lesson for running the petrol pump. The deceased
 collapsed and the four assailants escaped in the car in which
 they had come. The murder was thus witnessed by PWs-22,
 23, 24 and 25. The FIR was registered on the same day i.e.,        H
1436 .     SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A 16.07.1994 at 2 p.m. for the offence under Section 302 read
    with Section 34 of the IPC without making a mention to any
   ·names in it.
           3. On 22.07.1994, A-1 to A-4 surrendered. On
     24.07.1994, Inspector Rishal Singh (PW-53) arrestedA-5,A-
 B   6, A-7 andA-8 i.e. Balkar Singh Gujjar, Guizar Singh, Mangal
     Singh and Jasbir Singh. On 27.07.1994, Appellant (A-10) and
     Kamaljit Singh (A-11) were arrested by PW-53. On 23.07.1994,
     Dalbir Singh (A-9) surrendered. On 29.07.1994, Faquir Chand
     (A-12) was arrested and on 08.08.1994, the case was handed
 C   over to the Central Bureau of Investigation (hereinafter referred
     to as 'CBI'). The CBI commenced their investigation on
     09.08.1994. Subsequently, Darshan Singh (A-13) was arrested
     on 15.08.1994. On 22.10.1994, Nirmal Singh (A-14)
     surrendered. In the meantime, on 15.10.1994, the charge-
 D   sheet was filed.Altogether 14 accused were charged for the
     offences under Sections 120B, 302 read with Section 34, IPC.
     There were offences against some of the accused under the
     Arms Act, 1959 as well as under Section 201, IPC. The trial
     Court convicted A-1 to A-4, A-10 and A-11 for the offences
 E   under Sections 120B and 302 read with Section 34, IPC. The
     rest of the accused, including A-14, were acquitted of the
     charges under Section 120B as well as Section 302 read with
     Section 34, IPC.A-1 toA-4,A-10 andA-11 preferred Appeals
     before the High Court in Criminal Appeal Nos.327 DB of 1997,
 F   283 DB of 1997 and 295 DB of 1997. The appeal preferred
     byA-10was CriminalAppeal No.293 DB of 1997 and the one
     filed byA-11 was Criminal Appeal No.304 DB of 1997. The
     State through CBI filed Criminal Appeal No.428 OBA of 1997,
     as againstthe acquittal ofA-14 and five others. The Criminal
 G   Revision No.575of1997 was filed by the complainant PW-22
     against the acquittal of A-14 and thirteen others.
        4. By the impugned judgment, the Division Bench of the
   High Court of Punjab and Haryana dismissed the Appellant's
   appeal being Criminal Appeal No.293 DB of 1997, as well as,
 H the appeals preferred by A-1 toA-4. The appeal preferred by
          BALKAR SINGH v. STATE OF HARYANA                       1437
       [FAKKIR MOHAMED IBRAHIM KALIFULLA, J]

 A-11, namely, Criminal Appeal No.304 DB of 1997 was A
 allowed and he was acquitted of all the charges. The revision
 preferred by the complainant is Criminal Revision No.575 of
 1997 which was also dismissed. The appeal filed by CBI
 against the acquittal of A-5 and others in Criminal Appeal
 No.428 DBA of 1997 was also dismissed.                        B
       5. We heard Mr. Sushil Kumar, learned Senior Counsel
 for the Appellant and Ms. Madhurima Tatia, learned counsel
 for the CBI.
         In
         6. the present appeal, we are concerned only with A-
 10 who was convicted for the offence under Sections 120B C
 and 302 read with Section 34 along with A-1 to A-4. The entire
 case against A-10 was based on circumstantial evidence.
 Therefore, before entering into the discussion about the case
 of the Appellant and the submissions of the respe~tive counsel,
 it will be worthwhile to briefly state the principles relating to D
 any conviction to be imposed based on circumstantial
 evidence, which has been repeatedly laid down by this Court
 in various decisions. It will be essential to extricate these
 principles in order to appreciate the approach made by the
 trial Court, as well as the High Court, while convicting the E
 Appellant based on such circumstantial evidence.
          7. In the forefront, we can make a reference to an earlier
  decision of this.Court reported in Sha rad Birdhichand Sarda
  v. State ofMaharashtra-(1984)4SCC116, wherein athree F
  Judge Bench of this Court has laid down the conditions to be
. fulfilled before a case against an accused can be said to be
  fully established. The same has been set out in paragraph
  153, which reads as under:
             "153. A close analysis of this decision would show G
       that the following conditions must be fulfilled before a
       case against an accused can be said to be fully
       established:

                                                                  H
1438         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A                 ( 1) the circumstances from which the conclusion of
            guilt is to be drawn should be fully established.
                   It may be noted here that this Court indicated that
            the circumstances concerned "must or should" and not
            "may be" established. There is not only a grammatical
 B          but a legal distinction between "may be proved" and "must
            be or should be proved" as was held by this Court in
            Shivaji Sahabrao Bobade v. State of Maharashtra where
            the following observations were made: [SCC para 19,
            p. 807: sec (Cri) p. 1047]
 c               "Certainly, it is a primary principle that the accused
            must be and not merely may be guilty before a court can
            convict and the mental distance between 'may be' and
            'must be' is long and divides vague conjectures from sure
            conclusions."
 D
                   (2) the facts so established should be consistent
            only with the hypothesis of the guilt of the accused, that
            is to say, they should not be explainable on any other
            hypothesis except that the accused is guilty,
 E               (3) the circumstances should be of a conclusive
            nature and tendency,
                 (4) they should exclude every possible hypothesis
            except the one to be proved, and
                 (5) there must be a chain of evidence so complete
 F          as not to leave any reasonable ground for the conclusion
            consistent with the innocence of the accused and must
            show that in all human probability the act must have been
            done by the accused."               (Emphasis added)
 G          8. In the recent times, the above said principles have
       been followed and applied by this Court in the decisions
       reported in Arvind Kumar Anuplal Poddar v. State of
       Maharashtra - (2012) 11 SCC 172 and Shanti Devi w/o
       Shanker Lal v. State of Rajasthan - (2012) 12 SCC 158.
 H
         BALKAR SINGH v. STATE OF HARYANA                        1439
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

The relevant principles can be culled out in Shanti Devi (supra) A
from paragraphs 10 and 10.1 to 10.4 which are as under:
           "10. Having heard the learned counsel for the
     respective parties and having bestowed our serious
     consideration tothe judgment impugned before us and
     other material papers, as it is a case of circumstantial B
     evidence, we wish to quote the well-settled principles laid
     down by this Court in various decisions which are to be
     applied in order to examine the conclusions arrived at
     by the courts below while convicting the accused based
     on circumstantial evidence. The principles laid down in C
     those decisions can be mentioned before finding out
     whether or not the conviction and senter:ice on the
     Appellant can be held to have been established as stated
     in the judgment of the High Court as well as that of the
     learned trial court. The principles can be set out as under: D
           10.1. The circumstances from which an inference
     of guilt is sought tobe proved must be cogently or firmly
     established.
          10.2. The circumstances should be of a definite E
     tendency unerringly pointing towards the guilt of the
     accused.
           10.3. The circumstances taken cumulatively must
     form a chain so complete that there is no escape from
     the conclusion that within all human probability, the crime F
     was committed by the accused and none else.
           10.4. The circumstantial evidence in order to sustain
     conviction must be complete and incapable of
     explanation of any other hypothesis than that of the guilt
     of the accused and such evidence should not only be G
     consistent with the guilt of the accused but should be
     inconsistent with his innocence."'
                                         (Emphasis added)

                                                                 H
1440       SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A         9. Keeping the above stated legal principles relating to
   a case based on circumstantial evidence in mind, when we
   consider the submissions of the respective counsel, Mr. Sushil
    Kumar, learned Senior Counsel appearing for the Appellant
    after referring to the genesis of the case and the various dates
 B on which different accused were taken into custody by the
    police, the transfer of the case from the regular police to the
    CBI and the charge-sheet filed against the accused, pointed
    out thatthe charge against the Appellant along with A-5 toA-
    14 were under Section 120B as well as Section 302 IPC, while
 c A-1 to A-4, barring A-2, were charged under Sections 120B
    and 302 read with Section 34 IPC. A-2 was charged under
    Section 302 simplicitor along with Section 120B, IPC. The
    learned Senior Counsel submitted that whileA-1 toA-4 having
    been charged under Section 302 read with Section 34, IPC
 D and were convicted forthe said offence based on the account
    of eye witness, the case of the prosecution as against A-5 to
    A-14 mainly rest upon the charge under Section 120B, IPC for
    the alleged killing of the deceased for being convicted under
    Section 302, IPC. The learned Senior Counsel further point~d
 E out that the Appellant was linked with A-11 and in a higher
    perspective with A-14 and submitted thatA-14 was acquitted
    by the trial Court and A-11 was acquitted by .the High Court. By
    referring to the said conclusions of the trial Court and the High
    Court as regards the complicity of A-11 and A-14 along with
 F A-10 which resulted in the acquittal of A-11 and A-14, the
    learned Senior Counsel contended that the conviction of A-10
  · by singling him out of the said group was not supported by any
    legally acceptable evidence or principles of law.
         10. The learned Senior Counsel prefaced his submission
 G by stating that immediately after the surrender on 22.07.1994
   by A~1 toA-4, any confession before the State police could
   not have been relied upon as the same was hit by Section 25
   of the Eviden·ce Act, 1872. We find force in the said
   submission. Therefore, the learned Senior Counsel contended
 H that if the conviction of A-10 was to be upheld based on
         BALKAR SINGH v. STATE OF HARYANA                          1441
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

circumstantial _evidence, the basic principles, namely, the A
conclusive proof of the chain of circumstances as against the
Appellant should have been established and the said proved
circumstances should have led to the only hypothesis of the
guilt of the Appellant and not the contrary. The learned Senior
Counsel, by referring to the findings of the learned trial Judge B
as well as that of the High Court by which such of those vital
circumstances as against the Appellant having been found to
have been not proved by any legally acceptable ev.idence
contended that the conviction of the Appellant by the trial Court
and the confirmation of the same by the High Court was C
erroneous and against the legal principles and consequently
the appeal should be allowed. He, therefore, contended that
when the accused were proceeded against under Section
1208, IPC and such of those accused who were implicated
along with the Appellant were all acquitted of the charge under o
Section 1208, IPC there was no scope to convi~t the Appellant
alone.
      11. As against the above submissions, Ms. Madhurima
Tatia, learned Standing Counsel for the CBI contended that
there were distinguishing features in the case of the Appellant    E
as compared toA-1.1 andA-14 and, therefore, the exclusion
of A-14 from the charge under Section 1208, IPC by the trial
Court and A-11 by the High Court from the said charge and
their consequential acquittal can have no bearing on the
conviction of the Appellant. The learned counsel in that context   F ·
referred to the findings of the trial Court as well as the High
Court based on the material evidence, namely, the earlier
friendly relationship of the Appellant with the deceased and
A-14, the subsequ.Jn\ improvement in the status of A-14 which
en.abled him to acquire vast extent of wealth, the lucrative       G
business developed by the deceased which provided regular
source of livelihood for him while the status of the Appellant
remained precarious, which in course of time created the
heartburn and the motive for eliminating the deceased. The
 learned counsel contended that the overwhelming evidence,         H
1442        SUPREME COURT REPORTS                 [2014] 13 S.C.R.

 A namely, the suit preferred by the deceased as against the
    Appellant, as well as, certain other parties in connection with
    the petrol pump run by him atAmbala, the suit being filed by
    the Appellant himself as against the deceased with a view to.
    prevent him from running the said business and the failure in
 B his attempt to get a share in the petroleum business, were all
    circumstances which were found proved individually as against
    the Appellant and formed a sound motive for the killing of the
   ·deceased. The learned counsel also pointed out that apart
    from the above evidence, A-1 was his nephew who was also
 c  mainly attending to the business activities of the Appellant and,
    therefore, the engagement of A-1 by the Appellant for the killing
    of the deceased with the help of A-2 to A-4 was satisfactorily
    established. The learned standing counsel for CBI, therefore,
    contended that the judgment of the Division Bench of the High
 o  Court does not call for interference.
           12. Having heard learned counsel for the Appellant, as
   well as, the respondent and having perused the judgment of
   the trial Court and the High Court, while referring to the
   submission made on behalf of the CBI we have noted that the
 E said submission categorized the 14 accused in three groups
   for the purpose of the conspiracy levelled against them. In the
   first group, A-14 and A-10 were linked together. In fact
   according to the CBI, of the two leading conspirators, namely,
   A-14 and A-10,A-14 was supposed to bethe head conspirator
 F while the Appellant (A-10) was the executioner. At this juncture,
   it is relevant to state that though A-14 was acquitted by the trial
   Court, which was challenged by the prosecution before the
   High Court, the High Court declined to interfere with the acquittal
   of A-14 and the State has not chosen to challenge the same in
 G this Court. The acquittal of A-14 has, therefore, become final
   and conclusive.
             13. As far as the second group of conspirators was
       concerned, according to the CBI, it related toA-5,A-6, A-7, A-
       8, A-9, A-11 A-12 and A-13, all of whom except A-11 were
 H
         BALKAR SINGH v. STATE OF HARYANA                       1443
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

acquitted by the trial Court of the charge of conspiracy. A
However, A-11 was acquitted by the High Court. Here again,
the State has not chosen to file any appeal against the acquittal
of A-11 which has, therefore, become final and conclusive.
      14. The third group of conspirators, namely, A-1 to A-4
were stated to be contract killers. According to the CBI, the B
motive for each of the three groups in the killing of the deceased
was different. With respect to the first group, it was contended
that the motive was to acquire the petrol pump and for that
purpose eliminate whoever that came in their way. This,
therefore, resulted in the killing of the deceased. As far as the C
second group was concerned, it was simply stated that the
said group merely helped the first group of conspirators, being
their close friends. Lastly, as far as the third group of
conspirators was concerned, it was contended that being
professionals, their only motive was to make money and D
 nothing else.
        15. With the above three pronged tale of conspiracy
projected against the accused, the trial Court found no
acceptable material evidenc~ to support the conspiracy as
againstA-5 toA-9 and A-12 toA-14. Thereby, one substantial E
group of conspirators in the second group as well as the so-
called head conspirator were also found to be not part of the
conspiracy alleged against them. Though the State thought it
fit to challenge the acquittal of the so-called head conspirator
falling under the first group, the State accepted the acquittal of F
the other group of conspirators who fell under the second group.
In that process what remained was the alleg.ed conspiracy as
againsttheAppellant(A-10),A-11 andA-14. AsfarasA-1 to
A-4 are concerned i.e. the third group, it is true to a very great
extent that they were found to have murdered the deceased G
jointly with a common intention in the presence of eye
witnesses which was rightly relied upon by the trial Court as
well as by the High Court. Therefore, there is no difficulty in
 confirming the conviction of the said group of accused who
                                                                  H
1444         SUPREME COURT REPORTS                    [2014) 13 S.C.R.


 A     directly participated in the killing and who were rightly convicted
       under Section 302 read with Section 34, IPC.
               16. With the above said prelude, when we examine the
       case of the Appellant, we have to necessarily consider the
       submission of the learned Senior Counsel for the Appellant
 B     with .,all relevant circumstances which were relied upon by the
       prosecution ahd mainly focused against the Appellant along ·
       withA-11 andA-14, in particular linking withA-14. In fact, the
       trial Court having found no conclusive link in the chain of
       circumstances to linkA-14 along with the Appellant andA-11
 C     stated extensively thatthe conduct of A-10 and A-11 in running
       away after the killing of the deceased on 16.11.1994 till they .
       came to be arrested on 27.07.1994 when considered along
       with other relevant circumstances proved the guilt of the A-
       10 and A-11 along with A-1 to 4. While referring to the said
 D     conduct of the Appellant along withA-11 in moving from one
       place to another after the killing of the deceased and in that
       pursuit the earlier close relationship of the Appellant along with
       A-14 prior to the setting up of the petroleum business by the·
       deceased, the attempted conspiracy at Kala Amb_ earlier.which
 E     did not materialize, the telephone contact of the Appellant with
       the employee ofA-14 in between 16.07.1994 and 27.07.1994,
       the relationship oftheAppellantwithA-1 were all considered.
        But even the findings of the trial Court with reference to many
       ·of the above circumstances were not so very foolproof to show.
 F     a chain of circumstances without any break and, therefore, we
       feel that a far more serious consideration requires to be made.
       Further, when we perused the impugned judgment of the High
       Court, we find that there were certain definite findings              .
       highlighting deteriorating factors with reference to the chairi of ..
 G     circumstances in order to accept the case of the prosecution.
            17. The learned Senior Counsel for the Appellant
       subsequently drew our attention to the concluding arguments _
       of the CBI before the trial Court based. on the various
       circumstances placed before the trial C~urt to contend.that
 H
         BALKAR SINGH v. STATE OF HARYANA                      1445
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

according to the prosecution, A-14 was clamouring to be the A
ultimate beneficiary by getting a share in the business
developed by the deceased which thereby formed the
strongest motive to eliminate him and that the same was well
planned and executed with the full support of the Appellant who
was fully associated with him. Such association was stated to B
be from the very beginning, i.e. even beforeA-14 developed a
foot-hold in politics and supsequently when he was holding
the status of a minister handling health and social welfare. While
referring to the said submission made on behalf of the
prosecution before the trial Court, the learned Senior Counsel c
pointed out that one of the vital circumstances, namely, the
telephone call alleged to have been made by the Appellant on
the next day of occurrence, namely, 17 .07.1994 to PW-28 who
was the servant of A-14 at Chandigarh from whom the Appellant -
enquired about the whereabouts of A-1 at Mussoorie by finding o
it out from the residence of A-14 was held to be not established.
       18. The trial Court has given a categoric finding to the
effect that the evidence of Mohan Lal (PW-39) as well as Anoop
Gupta (PW-46) did not support the said version of the
prosecution and that there was no evidence to prove that the E
Appellant leftAmbala with A-11 on 16.07.1994 in his car for
Karna I or that on the way he made any telephone calls to the
residence of A-14 atAmbala and Chandigarh. We find a
substantial dent in the case of the prosecution having regard
to the said finding as arrived by the trial Court based on the F
evidence placed before it by the prosecution.
       19. One other circumstance which was placed before
the trial Court related to the arrest of A-10 arid A-11 as spoken
to by Shri Satpal Sehgal (PW-42). According to the
prosecution, PW-42 was the- driver of the car in which G
Appellant, A-11 and the other accused, namely, A-6 and A-7
travelled fromAmbala on 16.07.1994 for Kamal and that they
surrendered before the police at around 7/8 p.m. on
26.07.1994. In fact, by relying upon the evidences of Arun Kumar
                                                                  H
1446       SUPREME COURT REPORTS                    [2014] 13 S.C.R.


 A Handa (PW-28), PW-39 and PW-46, the trial Court reached a
   definite conclusion that there was no evidence to prove that
   the Appellant leftAmbala with A-6,A-7 andA-11on16.07.1994
   in his car for Karna I or that he made any telephone call to the
   residents of A-14 at Ambala and Chandigarh. While
 B considering the question as to on what date the A-10 and A-
   11 were taken into custody, the trial Court while referring to the
   version of PW-42 noted that as per the version of PW-53,
   Inspector Risha! Singh, the Appellant was taken to the Police
   Station Sadar, Ambala on 27.07.1994 at 11.30 a.m. and that
 c the version as spoken to by PW-42 with regard to the alleged
   surrender on 26.07.1997 itself was not true. Therefore, if as
   per the version of PW-53 Inspector Rishal Singh, Appellant
   andA-11 were arrested on 27.07.1994, it will be wholly unsafe
   to rely upon the version of PW-42 as rightly contended by the
 o learned Senior Counsel for the Appellant.
          20. As regards the allegation that A-14 was the head
   conspirator on the footing that he had the direct motive for killing
   the deceased since the deceased refused to succumb to his
   illegal pressure was concerned, the trial Court rejected the said
 E circumstance as againstA-14 by a giving detailed reasoning.
   The trial Court held that there was no evidence implicating A-
   14 along with the other accused in order to conspire together
   to commit the murder of the deceased, since there were no
   evidence of any act or words said by thein from which their
 F implicity in any such conspiracy could be inferred. The trial
   Court even while considering the earlier conspiracy stated to
   have been organized at Kala Amb, held that the same was not
   proved and that there was no acceptable evidence through
   any witness to prove the conspiracy of A-14 along with the
 G others. The trial Court, therefore, found that the evidence
   available on record only showed that the deceased, A-14 and
   A-10 were all in friendly terms and nothing else.
         21. Having noted the above referred to definite
   conclusions of the trial Court, we also find that the trial Court
 H took the view that the theory of conspiracy as againstA-5 to A-
         BALKAR SINGH v. STATE OF HARYANA                         1447
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

9 and A-12 to A-14 was not established and that the case of A
A-10 and A-11 stood on a different footing. For taking the said
view the reasons which weighed with the trial Court were based
on the circumstances, namely, thatA-10 and A-11 were moving
together and running away right from 16.07.1994, their arrest
on 27. 07 .1994 pursuant to their surrender, the running away of B
A-10 and A-11 from place to place to evade their arrest, A-10
filed a suit against the deceased for staying the operation of
the petrol pump, A-10 had a grievance against the deceased
in that respect, that the first accused who was taking active
part in the actual commission of the murder of the deceased       c
was the nephew of the Appellant, that by virtue of his close
relationship he was looking after the market of the Appellant
and that both A-10 and A-11, were on their run immediately
after A-1 to A-4 were remanded to police custody. Therefore,
the above acts of Appellant and A-11 pointed out towards their D
conspiracy with the accused A-1 to A-4 in the elimination of
the deceased.
      22. Having noted the various findings and conclusions
reached by the trial Court relating to the accused, we find the
following relevant circumstances were relied upon by the           E
prosecution to prove the guilt against the accused. The
circumstances were:-
      (a)   A-14, A-10 and the deceased were very good
            friends at one point of time.      ·
                                                                   F
      (b)   In course of time, A-14 developed a foothold in
            politics and ultimately reached a stage when he
            became a Minister in the State Government holding
            the portfolio of Health as well as Revenue.
      (c)   The deceased by his own efforts was able to set        G
            up a petrol pump in Ambala.
      (d)   A-14 along with A-10 desired to have a share in
            the petroleum business developed by the
            deceased, which was not acceptable to the
            deceased.                                              H
1448    SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A     (e)    As the deceased did not yield to the pressure of
             A-14 along with A-10, there was a conspiracy
             mooted in a place called 'Kala Amb' to eliminate
             the deceased earlier, which was not successful.
       (f)   A-10 filed a suit for permanent injunction against
 8           the deceased to restrain him from running the petrol
             pump.
       (g)   A-10 set up A-1 along with A-2 to A-4 for the killing
             of the deceased as A-1 happened to be his nephew
             and was also taking care of all the business
 c           activities of the Appellant.
       (h)   As part of the conspiracy, A-10 procured the car
             from PW-36 and the gun from A-9 and handed over
             both to A-1 for executing the plan of killing the
 D           deceased.
       (i)   After the deceased was assassinated on
             16.07.1994 and subsequently A-1 to A-4
             surrendered before the police on 22.07.1994, A
             10 was running away along with A-11 from place to
 E           place to evade being arrested by the police.
       Q)    PW-42 was the driver who was driving the vehicle
             in which A-10 and others were travelling after
             16. 07 .1994, till they were taken into custody.
       (k)   While he was on the run, the Appellant telephoned
 F           the official residence of A-14, talked to his
             employee PW-36 to find out as to where A-1 to A-4
             were staying in Mussoorie.
       (I)   Finding no way out, ultimately Appellant (A-10)
             along with A-11 surrendered on 27. 07 .1994 before
 G
             PW-53 Rishal Singh, who was associated with the
             investigation, though according to PW-42, the
             driver, the surrender took place on 26.07 .1994 at
                                                                     I
             around 7/8 p.m.
 H
                                                                     ~
                                                                     •
                                                                     I
          BALKAR SINGH v. STATE OF HARYANA                            1449
       [FAKKIR MOHAMED IBRAHIM KALIFUL~, J.]

       23. When the above circumstances were relied upon,             A
the trial Court as noted earlier, has found thatA-14 had no role
to play in the conspiracy and there was no clinching
circumstance to rope in A-14 in the murder of the deceased.
The trial Court also found that the other accused, namely, A-5
to A-9 and A-12 and A-13 also did not play any role in the             B
alleged conspiracy and they were acquitted. Ultimately,A-1 to
A-4 were found guilty of the killing of the deceased by virtue of
the direct evidence through PWs-22, 23 and 25, namely, the
brother of the deceased, the owner of the Dhillon Fuel Station
and the salesman Surjit Singh. As far asA-10 and A-11, namely,         C
Appellant and Kamaljit Singh@ Lalli are concerned, though
 the trial Court put both of them in the same pedestal while
 finding them guilty of conspiracy, as well as, the consequential
 murder of the deceased, the High Court gave a clean chitto
 A-11. The trial Court placed the Appellant (A-10) and A-11 in         D
 an identical situation by virtue of the singular fact that both of
 them were running away after the surrender of A-1 to A-4 in
 order to escape from the clutches of the police. However, the
 High Court has rightly found that there was absolutely nothing
 against A-11 for the charge of conspiracy under Section               E
  1208, IPC without which there was no question of roping him
 into the charge of murder under Section :i02, IPC.
       24. In the light of the above ultimate conclusions, when
we analyse the impugned judgment of the High Court in holding
that the Appellant had every role to play in the conspiracy along F
with A-1 to A-4 and the ultimate killing of the deceased, we
find that the said conclusion was based on the factors which
have been succinctly stated in the following paragraphs of the
Division Bench judgment:
           "Can it be said that what is true about Nirmal Singh G
      was also true about Balkar Singh Chudiala. This accused
      was the man who provided the gun and the car to the
      assailants. He had also escaped after the occurrence,
      to remain in hiding for 10 days before surrendering. It
                                                                       H
1450       SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A        can be said that Balkar Singh Chudiala was also on the
          run because he knew that he would be named as a
          conspirator for his friends murder. Balkar Singh Chudiala
          had more at stake than Nirmal Singh. The latter was a
          Minister and enjoyed political power and patronage,
 B        whereas the former was a mere hanger-on, a person who
          had been unable to derive any behefit from Satinder
          Sekhon or from his petrol pump. Nirmal Singh had got
          political power, Satinder Sekhon the petrol pump he
          desired but Balkar Singh Chudiala got nothing.
 c        Therefore, the motive for Balkar Singh Chudiala to get
          Satinder Sekhon murdered was strong. In actual fact,
          neither Balkar Singh Chudiala nor Nirmal Singh had ever
          been upto any good but at least Nirmal Singh had
          acquitted a position in the Government which gave him
 o        plenty of opportunity to acquire wealth. Balkar Sin.gh
          Chudiala was a failure and a drop-out. The motive for
          Balkar Singh Chudiala to conspire to murder Satinder
          Sekhon was strong and convincing.
                    Coming to the case of Kamaljit Singh @ Lalli,
 E         this accused had merely gone along with Balkar Singh
           Chudiala after the occurrence but had no personal enmity
           or grudge against Satinder Sekhon. The question to be
           considered in Kamaljit Singh's case is whether his
           accompanying the main accused would amount to such
 F         conduct as would implicate him as a conspirator. We do
           not think that such inference could be drawn."
                                              (underlining is ours)
            25. When we refer to the abovesa.id paragraph of the
     Division Bench and the factors which weighed with the trial
 G Court in singling out the Appellant for the killing of the deceased
     along with A-1 to A-4 based on a conspiracy, we find that the
     trial Court took into account the relationship of the Appellant
     with A-1 and his running away from place to place after the
 H . killing of the deceased as a more relevant factor. The Division
         BALKAR SINGH v. STATE OF HARYANA                       1451
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Bench relied upon the fact of the Appellant providing the gun A
and the car to the assailants apart from his attempt to escape
after the occurrence by way of hiding and the further fact that
among the three friends, namely, A-14, A-10 and the deceased,
the Appellant alone did not gain much either financially or by
any status and that formed a greater motive for the Appellant B
to eliminate the deceased.
     26. Therefore, the question for consideration is whether
those factors can be held to have formed sufficient
circumstances or to put it more precisely clinching
circumstances established in the manner known to law to prove C
the guilt of the Appellant for the conspiracy and the
consequential killing of the deceased. It will be worthwhile to
recapitulate the conceptual noting made by the trial Court as
regards the principles of conspiracy and the circumstantial
evidence when relied upon in a criminal case. Those concepts D
noted by the trial Court were as under:
     "351. It is settled law that while appreciating
     circumstantial evidence, the court must adopt a very
     cautions approach and should record a conviction only if
     all the links in the chain are complete pointing to the quilt E
     of the accused and every hypothesis of innocence is
     capable of being negatived on evidence. Great care has
     to be taken in evaluating circumstantial evidence and if
     the evidence relied on is reasonably capable of two
     inferences, the one in favour of the accused must be F
     accepted. The circumstances relied upon must be found
     to have been fully established and the cumulative effect
     of all the facts so established must be consistent only
     with the hypothesis of the guilt. In order to prove the charge
     of conspiracy it is necessary that the prosecution should G
     prove the names of the place or places where it was
     hatched, names of the persons hatching it and how was
     it hatched."
                                       (Underlining is ours)      H
1452       SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A        27. It has been rightly noted by the trial Court that while
   appreciating circumstantial evidence, the Court must adopt a
   very cautious approach and record a conviction only if all the
   links in the chain of circumstances are complete pointing to
   the guilt of the accused and every hypothesis of innocence is
 B capable of being negatived on evidence. It also noted that great
   care has to be taken in evaluating the circumstances and if
   the evidence relied upon is reasonably capable of two
   inferences, the one in favour of the accused must be accepted
   and the circumstances relied upon must be found to have been
 c fully established and the cumulative effect of all the facts so
   established must be consistent only with the hypothesis of the
   guilt. Similarly, as regards the conspiracy, the trial Court has
   rightly noted that in order to prove the charge of conspiracy, it
   is necessary that the prosecution should prove the names of
 o the place or places where it was hatched, names of the persons
   hatching it and how it was hatched. We find that the abovesaid
   understanding of a case to be appreciated when it was based
   on circumstantial evidence clubbed with the allegation of
   conspiracy was perfectly noted by the trial Court.
 E        28. However, we find that while applying the principles
   noted by it, the trial Court as well as the Division Bench of the
   High Court have completely given a go-bye to the principles
   and in fact the Division Bench took a tangent approach and
   gave a finding conflicting with its own conclusions relating to
 F the circumstances which were relatable to the Appellant. The
   High Court rightly noted the three circumstances which were
   really relevant in order to rope in the Appellant to the conspiracy
   and the consequential killing of the deceased. Those
   circumstances. were the conduct of the Appellant in having
 G procured the car from PW-36 and the gun fromA-9 and handing
   over both to A-1 his nephew. In so far as the said circumstance
   was concerned, the Division Bench has held as under:
           "The sixth circumstance was Balkar Singh Chudiala
           procuring the car from Swaran Singh and the gun from
 H
         BALKAR SINGH v. STATE OF HARYANA                     1453
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

     Dalbir Singh, and handing over both to Gurdev Singh. A
     Both the circumstances were found to be without
      supporting evidence as Swaran Singh did not support
      the prosecution. Recovery of Dalbir Singh's gun from
      Gurdev Singh. though established did not prove that
      Gurdev Singh had been given the gun by Balkar Singh B
      Chudiala. The part of Gurdev Singh's disclosure
      statement that he got the gun from Balkar Singh Chudiala
    - could not be proved in this manner." -
                                      (underlining is ours)
      29. The other circumstance was the escaping of the C
Appellant along withA-11 to different places. With reference
to the said circumstance also the Division Bench has held that _
there was no reliable evidence to prove the said circumstance,
which finding has been made in the following paragraph:
                                                               D
     "The nineteenth circumstance, Balkar Singh Chudiala
     and Kamaljit Singh escaping to Doraha, Ludhiana, Kot
     Kapura and then to Chandigarh to avoid arrest. He also
     stayed at Nirmal Singh's official residence at 118, Sector
     8, Chandigarh. The learned Judge held that there was E
     no reliable evidence of Nirmal Singh harbouring Balkar
     Singh Chudiala."
      30. The one other circumstance noted was the twentieth
circumstance which again related to the gun of A-9 which was
recovered at the instance of A-1, the nephew of the Appellant. ·F
While relating to the said circumstance, the conclusion of the
Division Bench was as under:
      "The twentieth circumstance relied upon by the
      prosecution was of the gun provided by Dalbir Singh to
      Balkar Singh C_hudiala for the murder and the same gun G
     -being used by Gurdev Singh to terrorize the witnesses. '
      The gun had been concealed by Gurdev Singh at his -
      tubewell and recovered from there on July 22, on the
      basis of his disclosure statement. The learned Judge
      disbelieved the-procurement of the gun by Balkar Singh H
1454        SUPREME COURT REPORTS                  [2014] 13 S.C.R.

 A         Chudiala from Dalbir Singh, Balkar Singh Chudiala
           handing it over to Gurdev Singh, because though this
           was a part of Gurdev Singh's disclosure statement it had
           not led to the discovery of any fact."
                                              (underlining is ours)
 B
         31. One other circumstance, which was noted as the last
   circumstance, was the so-called telephone conversation as
   between Jagmohan Singh Bhalla (PW-17) and A-13, i.e. after
   the killing of the deceased with reference to which also the
 C Division Bench held that it was wholly insufficient in so far as it
   related toA-13. The said circumstance has been dealt with by
   the Division Bench as under in the following paragraph:
          "The last circumstance relied upon by the prosecution
          regarding the conspiracy between all the 14 accused was
          that Darshan Singh had telephoned Jagmohan Bhalla
 D
          (PW17) on July 17 to inform him that Satinder Sekhon
          had been murdered. Jagmohan Bhalla replied that he
          had been asked to lure Satinder Sekhon to Kala Amb
          only to thrash him but Darshan Singh told him that actually
          Satinder Sekhon had been called to Kala Amb to be
 E
          killed. This circumstance was held to be insufficient to
          establish that Darshan Singh was a member of the
          conspiracy."
         32. After having reached the above conclusions,
 F unfortunately the Division Bench took a conflicting finding to
   its own earlier conclusions and came to an abrupt conclusion
   that Appellant conspired with A-1 to A-4 to eliminate the
   deceased. The said conclusions have been stated as under
   by the Division Bench:
G              "Can it be said that what is true about Nirmal Singh
          was also true about Balkar Singh Chudiala. This accused
          was the man who provided the gun and the car to the
          assailants. He had also escaped after the occurrence,
          to remain in hiding for 10 days before surrendering. It
 H        can be said that Balkar Singh Chudiala was also on the
        BALKAR SINGH v. STATE OF HARYANA                      1455
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

    run because he knew that he would be named as a A
    conspirator for his friends murder. Balkar Singh Chudiala
    had more at stake than Nirmal Singh. The latter was a
    Minister and enjoyed political power and patronage,
    whereas the former was a mere hanger-on, a person who
    had been unable to derive any behefit from Satinder B
    Sekhon or from his petrol pump. Nirmal Singh had got
    political power, Satinder Sekhon the petrol pump he
    desired but Balkar Singh Chudiala got nothing.
    Therefore, the motive for Balkar Singh Chudiala to get
     Satinder Sekhon murdered was strong. In actual fact, c
     neither Balkar Singh Chudiala nor Nirmal Singh had ever
     been upto any good but at least Nirmal Singh had
     acquitted a position in the Government which gave him
     plenty of opportunity to acquire wealth. Balkar Singh
     Chudiala was a failure and a drop-out. The motive for D
     Balkar Singh Chudiala to conspire to murder Satinder
     Sekhon was strong and convincing.
           Coming to the case of Kamaljit Singh@ Lalli, this
     accused had merely gone along with Balkar Singh
     Chudiala after the occurrence but had no personal enmity E
     or grudge against Satinder Sekhon. The question to be
     considered in Kamaljit Singh's case is whether his
     accompanying the main accused would amount to such
     conduct as would implicate him as a conspirator. We do
     not think that such inference could be drawn."           F
      33. Therefore, we find that the earlier conclusions of the
Division Bench on the 6th, 19th and the 20th circumstance
was rightly drawn, inasmuch as there was total lack of evidence
to hold that the Appellant (A-10) was responsible for procuring
the car from PW-36 and the gun from A-9 for handing it over to G
A-1. As far as the escaping of A-10 along with A-11 was
concerned, what applied toA-11 should equally applytoA-10,
namely, the Appellant. According to the prosecution, A-14 was
 the head conspirator as it was he who developed a great ill-
                                                                 H
1456       SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A will to eliminate the deceased as the deceased was not
    inclined to give a share to him in the petroleum business. The
    ultimate conclusion was drawn by the trial Court as well as the
    High Court based on the evidence placed before it that the
   said circumstance was not established. We, therefore, fail to
 B understand as to how A-10 can stand alone to conspire and to
   kill the deceased merely on the ground thatA-10, A-14 and
   the deceased were good friends once and that while the other
   two were well placed in life in course of time, A-10 was found
   to be a drop out. In fact even according to the prosecutionA-1
 c the nephew of the Appellant was taking care of the market of
   the Appellant and that the Appellant himself was a Chemical
   engineer and had his own business ventures. If that be so, the
   conclusion drawn by the High Court that the Appellant was a
   drop out was wholly unsupported by evidence placed before
 D the Court. The only other circumstance which can be niggled
   against the Appellant was a suit stated to have been filed by
   him as against the deceased for permanent injunction in order
   to restrain him from running the petroleum business. We are
   afraid that by relying upon such a singular circumstance, the
 E Appellant can be held to have carried out a conspiracy, when
   various other circumstances levelled against the accused had
   no link with each other in order to hold that the only hypothesis
   that can be drawn would be the guilt of the Appellant.
        34. As far as the conspiracy was concerned, there was
F no specific evidence as to who were all the conspirators, where
  and when the conspiracy was hatched, what was the specific
  purpose of such conspiracy and whether it was relating to the
  elimination of the deceased. In other words, the basic
  ingredients to support the theory of conspiracy was totally
G lacking either in the form of material evidence or otherwise.
  None of the circumstance had any iota of relevance to the ·
  alleged conspiracy either at the instance of A-10 or A-14
  against whom both the Courts gave a clean chit. There was
  nothiog to suggest thatA-10 held a conspiracy with A-1 toA-4.
H Oh the other hand, the specific case of the prosecution was
          BALKAR SINGH v. STATE OF HARYANA                         1457
       [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

that at the instance of A-14, the head conspirator, A-10 executed A
the plan. When A-14 was found to have played no role in the
whole case, there is no scope to pin down A-10 alone to the
theory of conspiracy.
      35. Even going by the conclusions of the trial Court and
the Division Bench of the High Court, the allegation of B
conspiracy levelled againstA5 toA9 andA11toA14 was ruled
out. Then it remained against A 1 to A4 and A 10. Even the
earlier conspiracy alleged to have been planned at Kala Amb
was held to be not established. As far as A 1 to A4 and A 10
were concterned, there was no iota of evidence to link them to C
any act of conspiracy leave alone, the place, time and the nature
of conspiracy. Therefore, once the charge of conspiracy under
Section 1208 IPC was totally ruled out againstA10, we fail to
understand as to how he alone could be charged and found
guilty of that charge and consequently of the charge under D
Section 302 read with Section 34 IPC.
     36. Having regard to our above conclusions, we are
convinced that the charge of conspfracy levelled against the
Appellant under Section 1208, IPC and the further charge
under Section 302 read with Section 34, IPC was not E
conclusively proved and consequently, the conviction and
sentence imposed on the Appellant cannot be sustained. The
appeal, therefore, stands allowed. The conviction and sentence
imposed on the Appellant is set aside. ,,
                                                               F

Bibhuti Bhushan Bose                             Appeal allowed.