Supreme Court of India
ESHER SINGHversusSTATE OF ANDHRA PRADESH
- Citation
- 2004 INSC 170
- Decided
- 15 March 2004
- Disposal
- Dismissed
- Bench
- DORAISWAMY RAJU
Holding
A confessional statement under Section 15 of TADA is admissible only when both the confessor and the co‑accused are charged and tried after the framing of charges, and the trial court erred in discarding witness testimony merely on the basis of familial relationship.
Summary
The case involved Esher Singh and others who were accused of giving provocative speeches to promote a Khalistan movement and of conspiring to murder Joga Singh, the owner of several Sikh educational institutions. The Designated Court convicted Esher Singh under Section 4 of the Terrorist and Disruptive Activities (Prevention) Act (TADA) based largely on the confessional statement of a co‑accused (A‑5) who died before charges were framed, and on the testimony of a few witnesses, while discarding other witnesses because they were relatives of the deceased. The Supreme Court held that a confessional statement under Section 15 of TADA is admissible only when both the confessor and the co‑accused are charged and tried after framing of charges, and that the trial court erred in rejecting the testimony of witnesses merely on the basis of their relationship. It further clarified that the evidence, when examined as a whole, established the elements of the offence under Section 4 of TADA, but did not support convictions for criminal conspiracy or murder. The Court also affirmed that appeals under Article 136 are maintainable by private parties and dismissed all three appeals – the appellant’s conviction under TADA, the State’s challenge to the acquittals, and the son’s special leave petition.
Issues considered
- The admissibility of a co‑accused’s confessional statement under Section 15 of TADA when the confessor died before charges were framed.
- Whether the trial court was justified in disregarding witness testimony solely because the witnesses were relatives of the deceased.
- Whether the evidence established the ingredients of an offence under Section 4 of TADA.
- Whether the evidence was sufficient to sustain convictions for criminal conspiracy (IPC 120B) and murder (IPC 302).
- The maintainability of a special leave petition under Article 136 filed by a private party challenging an acquittal.
Legislation cited
- Arms Act, 1959s. 27
- Code of Criminal Procedure, 1973s. 2(b)
- Indian Evidence Act, 1872s. 30
- Indian Penal Code, 1860s. 120A, s. 120B, s. 302
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3(3), s. 4, s. 5, s. 6
Subjects
TADAconfessional statementcriminal conspiracyprovocative speechArticle 136special leave petitionwitness credibilityevidence admissibilityterrorism
Judgment
A ESHER SINGH
v.
ST ATE OF ANDHRA PRADESH
MARCH 15, 2004
B [DORAISWAMY RAJU AND ARlJIT PASAYAT, JJ.]
Penal Code, 1860-Sections l 20A, l 20B and 302-Criminal Procedure
Code, 1973--Section 2(b)-Terrorist and Disruptive Activities (Prevention)
C Act, 1987 (TADA)--Sections 3(3), 4, 5, 6 and 15-Appellant was involved in
giving provocative speeches for formation of Khalistan and inciting violence
fanning religious feelings-Appellant and other accused charged for criminal
(
conspiracy and murder ofdeceased under IPC and TADA-Prosecution relied
on confession statement of one of the accused, who died without facing trial,
in convicting the appellant-Designated Court convicted only the appellant
D under section 4 of TADA for making provocative speeches and acquitted the
appellant and other accused from the offence of criminal conspiracy and
murder-Designated Court disregarded the evidences of some witnesses being
relatives ofthe deceased-Correctness of-Held, use ofa confessional statement
against the accused under Section 15 of TADA is permissible when both the
accused making the confessional statement and the co-accused are facing
E trial after framing of charges-Designated Court was wrong in disregarding
the evidences of witnesses merely on the ground of relationship without giving
reasons-Evidences of such witnesses can be acted upon if they are cogent
and credible-Ingredients necessary for conviction under section 4 of TADA
have been clearly established by prosecution against appellant-On evidence,
p the conviction for criminal conspiracy and murder not established by
prosecution-Evidence Act, I 872 : Section 30-Jndian Arms Act, 1959 : Section
27.
Constitution of India-Article 136--Special Leave Petition by son of
the deceased challenging the acquittal of appellant and other accused by
G Designated Court-Maintainability of-Held, maintainable-Supreme Court
has discretionary power to entertain such appeal to prevent serious miscarriage
ofjustice.
Appellant and other accused intended to take over the institutions
established by the deceased and make a base for Khalistan movement. The
H .llW
ESHER SINGH v. STATE OF A.P. 1181
appellant was involved in giving provocative speeches for formation of A
Khalistan and inciting violence fanning religious feelings. The appellant
and other accused were charged for criminal conspiracy and murder of
t
the deceased under sections 120-B and 302 read with 120-B IPC, 3(2) of
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and
...
Section 27 of the Indian Arms Act, 1959 read with Section 5 and 6 of
TADA.
B
~
The Designated Court, on the basis of the evid,!nce tendered by PWs
16 and 32 and corroborated by the confessional statement of one of the
accused (A-5), held the appellant guilty of offence punishable under section
- )
4 of TADA and sentenced him to rigorous imprisonment for 5 years and.
a fine of Rs. 1000 with default stipulation. The Designated Court did not
rely on evidences of other .witnesses on the ground of relationship with
c
the deceased; however it acquitted the appellant and other accused against
other offences since the allegations were not established. Appeals were filed
before this Court by the appellant challenging his conviction under section
4 of TADA and by the State challenging the acquittal of the appellant and D
other accused persons from other offences charged with. An appeal was
also filed by the son of the deceased before this Court.
The appellant contended that the evidence of PWs 16 and 32 do not
prove the accusations against the appellant; that no specific instance of
fanning of religious feelings through provocative speeches for formation E
of Khalistan and creating communal disharmony by the appellant was
'
-~~
proved; that the confessional statement of the accused (A-5), who died
before the charges were framed, was not admissible in law; and that the
Designated Court acted upon certain statements which were made in the
Court for the first time and were not told during investigation. The F
appellant further contended that the appeal filed by the son of the deceased
~
is not maintainable under Article 136 of the Constitution of India.
The State, in its appeal, contended that accused A-5 had categorically
confessed about the involvement of the appellant and other accused in the
crime; that the death of the accused A-5, before framing of charges, cannot G
affect the authenticity of the voluntary confession statement; that the
confession of the co-accused is substantive in nature and can be treated
as evidence under section 15 of TADA or under section 30 of the Indian
~
=--._/ Evidence Act, 1872; that the evidences of other witnesses, besides PWs 16
and 32, and other materials on record clearly establish the role played by
H
1182 SUPREME COURT REPORTS (2004] 2 S.C.R.
A various accused persons, the chain of events and motive for the crime and
hence the Designated Court erred in acquitting the appellant and other
accused from other charged offences; and that this a fit case under section
3(3) of the Act and offences under the IPC have been clearly established.
The son of the deceased, in his appeal, besides adopting the
B contentions of the State, contended that Section 15 of TADA should not
be given a too technical interpretation as to disturb the true legislative
intent.
Dismissing the appeals, the Court
C HELD: 1. A person becomes an accused for the purpose of trial after
the charges are framed. The question of having a trial before charges are
. framed does not arise. Therefore, the only interpretation that can be given
to the expression "charged and tried" in Section 15 of TADA is that the
use of a confessional statement against the accused is permissible when
D both the accused making the confessional statement and the co-accused
are facing trial after framing of charges. [1197-D-E]
Kalpanath Rai v. State (through CBI), [1997) 8 SCC 732; State through
Superintendant of Police, CBI/SIT v. Nalini and Ors., [1999) 5 SCC 253 and
...,
State of Gujarat v. Mohammed Atik and Ors., [1998) 4 SCC 351, relied on.
E
2.1. When the basic features are stated, unless the elaboration is of
such nature that it creates a different contour or colour of the evidence,
the same cannot be said to have totally changed the complexion of the case.
In addition to the evidence of PWs 16 and 32, the evidence of PW-21
provides the necessary links and strengthens the prosecution version. The
F evidence of PW-24 was not tainted in any way, and should not have been
discarded and disbelieved only on surmises. PW-3, the son of the deceased,
has also stated about the provocative statements in his evidence. PW-14
has spoken about the speeches of the appellant highlighting the Khalistan
movement. The Designated Court had not given importance to th.e
G evidence of some of the witnesses on the ground that they were relatives
of the deceased. The approach is wrong. Mere relationship does not
discredit the testimony of a witness. What is required is careful scrutiny
of the evidence. If after careful scrutiny, the evidence is found to be
credible and cogent, it can be acted upon. [1198-G-H; 1199-A-C]
H 2.2. In the instant case, the trial Court did not indicate any specific
-
ESHER SINGH v. STA TE OF A.P. 1183
reason to cast doubt on the veracity of evidence of the witnesses, whom it A
had described to be the relatives of the deceased. PW-24 has categorically
stated about the provocative speeches by A-1. The evidence makes the
position crystal clear so far as accusations against appellant are concerned.
(1199-C)
3. For the purpose of applying sub-section (2) of Section 4 of TADA, B
the explanation appended thereto assumes great significance in the present
case; more particularly in view of the inclusive definition of "secession".
Demand for Khalistan is clearly encompassed by the said definition. The
ingredients necessary to bring in application of section 4 of TADA have
been clearly established. (1200-F-G) C
3.1. None of the witnesses examined on behalf of the prosecution
stated anything about the descriptive particulars of the assailants. There
was also no evidence of the appellant indulging in any manner armed with
firearms or explosives. The evidence of witnesses goes only to the extent
of showing that the appellant was giving provocative speeches for D
formation of Khalistan and inciting the Sikhs for violence fanning religious
feelings. Merely because the appellant-accused was holding the deceased,
as alleged, to be responsible for the killing of six Sikh students that per se
does not prove conspiracy. [1202-G-H; 1203-A-B)
3.2. The essence of a criminal conspiracy under the definition in E
- Section 120-A IPC is the unlawful combination and ordinarily the offence
is complete when the combination is framed. 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
minds. The encouragement and support which co-conspirators give to one
another rendering enterprises possible which, if left to individual effort,
F
would have been impossible, furnish the ground for visiting conspirators
and abettors with condign punishment. The conspiracy is held to be
co~inued and renewed as to encompass all its members wherever and G
wh·1mever any member of the conspiracy acts in furtherance of the
COrfthlOD design. [1203-F-G). .
/
' American Jurisprudence Vol. II p. 559, referred to.
3.3. For an offence punishable under section 120-B IPC, prosecution H
1184 SUPREME COURT REPORTS (2004) '.! S.C.R.
A 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. Offence of criminal conspiracy has its foundation in an
11greement to commit an offence. A conspiracy consists not merely in the
~ntention of two or more, but in the agreement of two or more to do an
B µnlawful 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 again~
promise, actus contra actum, capable of being enforced, if lawful,
punishable if for a criminal object or for use of criminal means. The
C
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. The circumstances proved before,
-
(
during and after the occurrence have to be considered to decide about the
complicity of the accused. There is no difference between the mode of proof
of the offence of conspiracy and that of any other offence.
(1203-H; 1204-A-B, D; 1205-A]
D
Bhagwan Swarup Lal Bishan Lal etc. etc v. State of Maharashtra, AIR
(1965) SC 682.
Halsbury's Laws of England 4th Ed. Vol. 11 P. 58.
E 3.4. As in all other criminal offences, the prosecution has to
discharge its onus of proving the case against the accused beyond
reasonable doubt. A few bits here and a few bits there on which the
prosecution relies cannot be held to be adequate for connecting the accused
with the commission of the crime of criminal conspiracy. It has to be shown
F that all means adopted and illegal acts done were in furtherance of the
object of conspiracy hatched. The circumstances relied for the purposes
of drawing an inference should be prior in point of time than the actual
commission of the offence in furtherance of the alleged conspiracy.
(1206-A-C]
G v.c. Shukla v. State (Delhi Admn.), [1980] 2 sec 665, referred to.
3.5. The provisions of Section 120A and 120B IPC have brought the
law of conspiracy in India in line with the English Law by making the
overt act unessential when the conspiracy is to commit any punishable
offence. [1206-F]
H
ESHER SINGH i·. ST ATE OF A.P. 1185
Regina v. Murphy, 11837] 173 ER 502, referred to. A
Russell on Crime, 12th Ed. Vol. I. p 202; Criminal Law by Glanville
Williams, Second Ed. p.382, referred to.
4.1. In a case where the agreement is for accomplishment of an act
which by itself constitutes an offence, then in that event, no overt act is B
necessary to be proved by the prosecution because in such a situation,
criminal conspiracy is established by proving such an agreement. Where
the conspiracy alleged is with regard to commission of a serious crime of
the nature as contemplated in Section 120B read with the proviso to sub-
section (2) of Section 120A IPC, then in that event mere proof of an C
agreement between the accused for commission of such a crime alone is
enough to bring about a conviction under Section 120B and the proof of
any overt act by the accused or by any one of them would not be necessary.
The provisions, in such a situation, do not require that each and every
person who is a party to the conspiracy must do some overt act towards
the fulfilment of the object of conspiracy. The essential ingredient being D
an agreement between the conspirators to commit the crime and if these
requirements and ingredients are established, the act would fall within the
trapping of the provisions contained in section 120B IPC.
(1207-F-H; 1208-AJ
S.C. Bahri v. State of Bihar, AIR (1994) SC 2420 and E.K. E
- Chandrasenan v. State of Kera/a, AIR (1995) SC 1066, referred to.
4.2. The evidence as to the transmission of thoughts sharing the
unlawful act is not sufficient. A conspiracy is a continuing offence which
continues to subsist till it is executed or rescinded or frus.trated by choice
of necessity. During its subsistence whenever any one of the conspirators F
does an act or series of acts, he would be held guilty under Section 120-B
IPC. [1209-C-D)
Kehar Singh and Ors. v. The State (Delhi Administration), AIR (1988)
SC 1883, referred to.
G
4.3. When the evidence is tested, the inevitable conclusion is that the
Designated Court was justified in holding that accusations under Section
120-B IPC were not made out so far as the offences under IPC are
concerned. So far as the motive for the killing is concerned, the evidence
is clear to the extent that the appellant wanted removal of the deceased H
•r
I
1186 SUPREME COURT REPORTS [2004] 2 S.C.R.
A from the bodies of various trusts and educational institutions and not his
removal from this world. In the absence of adequate material to establish
commission of offences punishable under Section 302 or 302 read with
Section 120B IPC and Section 3(3), 5 and 6 of TADA and Section 27 of
the Arms Act, the appeals filed by the State and the complainant are
B without merit. [1211-F-G)
Ajay Agarwal v. Union ofIndia and Ors., JT (1993) 3 SC 203; Yashpal
Mittal v. State of Punjab, [1977) 4 SCC 540 and State of Maharashtra v. Som
Nath Thapa, (1996) 4 SC 615, relied on.
C 5.1. Article 136 of the Constitution neither confers on anyone the
right to invoke the jurisdiction of this Court nor inhibits anyone from
invoking the Court's jurisdiction. The power is vested in this Court but
-
the right to invoke the Court's jurisdiction is vested in no one. The exercise
of the power of this Court is not circumscribed by any limitation as to
who may invoke it. Where a judgment of acquittal by the High Court has
D led to a serious miscarriage ofjustice, this Court cannot refrain from doing
its duty and abstain from interfering on the ground that a private party
and not the State has invoked the Court's jurisdiction. This Court can
entertain appeals against judgments of acquittal by the High Court at the
instance of interested private parties also. The circumstance that the Code
does not provide for an appeal to the High Court against an order of
E acquittal by a subordinate Court, at the instance of a private party, has
no relevance to the question of the power of this Court under Article 136.
Appeals under Article 136 of the Constitution of India are entertained by
special leave granted by this Court, whether it is the State or a private
party that invokes the jurisdiction of this Court, and special leave is not
p granted as a matter of course but only for good and sufficient reasons,
well established by the practice of this Court. (1201-A-G)
Durga Shankar Mehta v. Thakur Raghuraj Singh, AIR (1954) SC 520;
Mohan Lal v. Ajit Singh, (1978] 3 SCC 279; A_runachalam v. P.S.R.
Sadhqnantham and Anr., (1979] 2 SCC 279 and P.SR. Sadhanantham v.
G Arunachalam and Anr., (1980] 3 sec 141, referred to.
5.2. In the instant case, both the State and son of the deceased have
questioned the correctness of the impugned judgment. Appeal filed by the
son of the deceased is first in point of time. On the facts of the case, the~e
is no question of holding the appeal filed by the son of the deceased to be
H not maintainable. (1202-F)
ESHER SINGH v. STATE OF A.P. [PASA YAT. J.J 1187
~ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A
1.363 of 2003.
From the Judgment and Order dated 17.10.2003 of the Illrd Additional
Metropolitan Sessions Judge, Hyderabad in S.C. No 186 of I 989.
WITH B
(Criminal Appeal Nos. 1523 and 1524 of 2003)
R.K. Jain, Hardev Singh, U.R. Lalit, Mrs. K. Amreshwari, S.S. Nehra,
Dr. J.B. Gour, Abhav· Prakash Sahay, P.R. Ramasesh and Guntur Prabhakar
C
...
--- for the Appearing Parties.
,, The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. The matrix of these three appeals is a judgment
rendered by the III Additional Metropolitan Sessions Judge, Hyderabad acting
as the Designated court under the Terrorist and Disruptive Activities D
• (Prevention) Act, 1987 (in short the 'TADA').
Nine persons were alleged to be responsible for homicidal death of one
Joga Singh (hereinafter referred to as the 'deceased'). Five of them faced trial
and one of them Nishan Singh (A-3) died during the trial and therefore the
case abated so far he is concerned. The accused persons who faced trial were E
Esher Singh (A-1), Nanak Singh Nishter (A-2), Nishan Singh (A-3), Dilbagh
Singh (A-4) and Rajender Singh Dhingra (A-6). Ram Singh (A-9) absconded.
Charge sheet was filed against A-1 to A-9 for offences punishable under
Sections 120B and 302 read with Section 120B of the Indian Penal Code,
1860 (in short the 'IPC'). Section 3(3) of TADA and Section 27 of the Indian F
........ __ ... Arms Act, 1959 (in short the 'Arms Act'), read with Sections 5 and 6 of
'-., TADA.
'l_ · -
,,The Trial Court found that accused Esher Singh, (appellant in Crl.A.
No. 1363/2003) was guilty of offence punishable under Section 4 of TADA
and while fu~her holding that the other allegations were not established so G
far as appellant Estter Singh and other co-accused are concerned. Esher Singh
was
. "
convicted as afore~noted and sentenced to suffer rigorous impriso.nment
for five years and to pay¥ne of Rs. I ,000 with default stipulation. While .
Esher Singh questions legalit)( of the conviction and sentence imposed, the
State of Andhra Pradesh has quhtioned acquittal of the accused persons who
faced trial, and their non-conviction for the charged offences: H
1I88 SUPREME COURT REPORTS [2004] 2 S.C.R.
A The State's appeal is numbered as Criminal Appeal No. 1524/2003.
Balbir Singh son of deceased Joga Singh has filed Criminal Appeal No.
1523/2003 with grievances similar as that of the State of Andhra Pradesh.
---
>
Accusations which led to the trial of the accused persons are essentially
as follows:
B
-
Accused persons conspired to kill deceased Joga Singh, to abet terrorist
and disruptive activities. Deceased had established many educational
institutions to serve Sikh community like Gurunanak Hospital in 1969, .'
"
Gurunanak Public School Bidar in 1975, Gurunanak School at Hyderabad in
1978 and could successfully establish Gurunanak Dev Engineering College
I
C at Bidar in August, 1980. Accused persons intended to take over the said
institutions and make a base for Khalisthan movement. After "Operation
-----'
~
Blue Star" which wounded the religious feelings of Sikhs, the Pro-Khalistan
militant Sikh Students Organisation had its watchful eyes on Sikh student
population of Bidar to establish its base. Dilbagh Singh (A-4) an activist of
all India Sikh Students Federation (AISSF) who was studying in II year in the
D
Gurunanak Dev Engineering College came in contact with Deepender Singh
(A-5) who was student of Regional Engineering College, Balky. Others
involved were some wanted activists of AISSF. After proposed move of the
Government of India to have a comprehensive legislation for all Gurudwaras,
the deceased Joga Singh created a trust in the name of Shree Nanak Jheera
E Sahib Trust (Foundation) and transferred all the Educational Institutions to
the trust while delinking religious activities of the Gurudwara to Gurudwara
Nanak Jheera. Sahib and Mai Bhago. Deceased continued to be the head of
both the trust and Gurudwara.
Esher Singh (A-1) who was working as Sub-Inspector of Central Reserve
F Police Force left the service after "Operation Blue Star" and started moving
about in Hyderabad City wearing Bhindranwale type garments and organised
processions carrying Bhindranwale pictures and held Bhog ceremony at / ""-._._.....
Gowliguda Gurudwara, Hyderabad. He was making efforts to inject rra'fiecf'
and disaffection among the Sikhs and could successfully ta)'!'/t;'~er the
Barambala Gurudwara at Rajendranagar, Attapur in Sikp/.....Chavani and
G successfully tried to bring some militant youth under his f,0'1d and indoctrined
Pro-Khalistan ideology by imparting training to th~Jv(fn Shastra Vidya and
Karate at Sikh Chavani Attapur and Gowliguda. H~also attempted to advocate
the said ideology in Bidar among the student/ Nanak Singh Nishter (A-2)
who was president of Central Gurudwara, q6'wliguda and also an Executive
H Member of Shree Nanak Jhira Sahib,-Bidar, and Gurudwara Mai Bhago at
I
ESHERSINGH v. STATE OF A.P. [PASAYAT.J.J 1189
Janwada was actively assisting the deceased in his religious activities, felt A
disappointed and aggrieved by his non-inclusion as member of the Trust of
Prabhandak Committee, Nanak Jheera Trust in 1987. Nishan Singh (A-3)
was residing in Bidar since September 1987 as representative of Baba Charan
Singh who was incharge of Karseva of Kurukshetra Gurudwara. Attempts to
pursue deceased Joga Singh to transfer the Kar Seva agreement in his name
cancelling the earlier agreement of Baba Charan Singh did not yield any B
result. A-1 to A-3 developed hatred against the deceased, and launched tirade
against the deceased with a view to take over the seat of the deceased.
Dilbagh Singh (A-4) a native of Amritsar and active member of All India
Sikh Student Federation, Punjab, sought his admission in Gurunanak Dev
-- Engineering College, Bidar, and started enlisting students from North India C
into his Pro-Khalistan activities and became close associate of A-3. Deepender
Singh (A-5), resident of Nabha, Patiala, and student of Rural Engineering
College, Bhalki which is at a distance of 40 kms. from Bidar came in contact
with A-1 and A-3 and was frequently visiting Dhera of Karseva. A-1 and
others were rigorously pursing their plan and propagating Pro-Khalistan
ideology among Sikh students of Bidar Rajender Singh Dhingra (A-6) of D
Hind Motor Driving School and Sony Travels and relative of A-2 is staunch
supporter of A-1. Mohinder Singh (A-7) a native of Haryana, a proclaimed
offender and terrorist of Punjab who was involved in number of terrorist
cases was also close associate of A-3. Gurmail Singh (A-8) of Punjab is also
a terrorist of Punjab and participated in various crimes alongwith A-5, A-7 E
and A-9. Ram Singh (A-9) also is a wanted terrorist of Punjab who participated
in the present occurrence.
A-1 and A-2 who were entertained for their religious affiliation misused
the same by collecting donations from students seeking admissions in
Gurunanak Dev Engineering College, Bidar. On coming to know of the same, F
deceased discarded them. Movement started by deceased to start a Medical
College heightened the tensions which was building up with the arrival of
some Sikh boys from North India. Several non-f.ikh educational institutions
joined hands to organise an agitation against granting of permission to start
medical college, because they feared that it would be further increasing the G
number of Sikhs to about 1200, of which 1000 from North India having anti-
established stands. There was organised violence and riots in September,
1988, in which six Sikh students were killed, besides many were injured and
houses and shops of Sikhs were damaged and burnt, besides religious
institutions. A-1 to A-3 who were waiting for an opportunity to make their
inroads to contain the growing influence of the deceased Joga Singh and also H
1190 SUPREME COURT REPORTS [2004] 2 S.C.R.
A to occupy his position, made number of visits to Bidar, contacted A-3, A-4
and A-5 and other militant Sikhs having Pro-Khalistan ideas for starting
tirade against the deceased Joga Singh. They also started an active propaganda
that contributions made by the Sikh community to the educational trust were
misused with a view to deprive the Sikh community. They also accused the
deceased of many improprieties including indifference to the security of Sikhs.
B At the instance of A- I and A-2, a meeting of Sikh community was convened
on 22.9.1988 at Sikh Hostel Narayanguda, Hyderabad to pay homage to
departed souls of students who were killed in Bidar riots. In the meeting A-
l and A-2 proposed to hold Deewan-E-Aam on 2.10.88 at Bidar Gurudwara
with an ulterior motive of defaming and excommunicating the deceased and
C trustees and usurp the control ofGurudwara and the trust. A-1, A-2, A-3, A-
4, A-6 and others marshalled their associates, and mustered their strength.
having successfully augmented majority among the students who attended. (
A-1 and A-2 gave highly inflammatory speeches making wild allegations
against the deceased and levelling allegations of mal-administration of religious
funds of the community, made the deceased responsible for the misery to
D Sikh students and accused him of having fai!ed in his responsibility to protect
the Sikhs at Bidar. In that way A-I to A-3 could successfully make a dent
in establishing a base for Pro-Khalistan movement and trying to get support
of those who were openly opposing the deceased Joga Singh. A-1 and A-2
made their own henchmen as Punj Pyaras and imposed punishment of
E "Thankayya" on the deceased and four others holding them responsible for
the death of Sikh students and for their religious impropriety. The deceased
and his supporters resisted the said move and the matter was referred to
Thakhat Such Khand Shri Hazur Saheb, Nanded, which is considered as
Southern region religious head of the Sikh community. Hazura Singh (DW-
36) who is one of the Punj Pyaras of Nanded Gurudwara made enquiries
F from A-1 and deceased, disapproved the move of A-1 of ex-communication
and imposition of punishment on the deceased. A-1 questioned the propriety
of decision taken by Hazura Singh (DW-36), but later obeyed the religious
order. Accused persons proclaimed that they will retaliate if the culprits are
not booked before 23rd November, 1988 (i.e. Guru Nanak Jayanthi) as a part
G of terrorist activity to create terror in the minds of moderate Sikhs.
On 28.12.1988, two vehicles bearing Nos. AHS 9424 AHA 1168 which
were carrying sixty ceiling fans were burnt by mob of students in Gurudwara .
premises. In that regard a case i.e. Cr. No. 422/88 U/Ss. 143, 211, 136 r/w
H
149 IPC was registered at Gandhigunj P.S. of Bidar District against unknown
students in which the complicity of A-4 was strongly suspected. A-1 and A- --
- ESHERSINGH v. STATE OF A.P. [PASAYAT.J.j 1191
2 started printing, publishing and circulating highly inflammatory, defamatory
propaganda against the deceased Joga Singh, instigating student community
A
against the deceased with a view to bring them under their fold and propagate
Pro-Khalistan among Sikh community and organise an organisation, calling
itself as "SIKH COMMANDO FORCE". They threatened the Government
with dire consequences under the pretext of championing the cause of Sikh B
Community.
Deceased was apprehensive of A-1 and his associates and made earnest
appeal to the authorities concerned requesting to contain the anti-national
activities, for protection and also to take steps to contain the Pro-Khalistan
activities. As a security measure, check post was established on the outskirts C
of Bidar to check the vehicles in which the Sikhs were entering into Bidar
and systematically check and numbers noted with a view to prevent inflow
of wanted Pro-Khalistan activities and arms and ammunition. Another check
post was established at the entrance of Gurdwara, Bidar, besides various
other major steps for tightening security at Bidar Gurudwara under charge of
M. Srivastava, Superintendent of Police, Bidar. One officer was also posted D
as Personal Security Officer to the deceased with a service revolver and
ammunitions.
A-1 to A-3 intensified their war against the deceased by abusing,
threatening, intimidating him. By the end of 1988 A-1 to A-3 could
successfully establish contact with the underground dreaded terrorist Mohinder E
Singh (A-7) in Nanded who was taking his shelter there. Thereafter A-7
shifted to Bidar alongwith his family and took shelter with A-3 in his Dhera
as a Kar Sevadar. A-5, A-8 and A-9 used to frequently move in the company
of Kar Sevadar alongwith A-3, A-4 and A-7. A-8 approached Dayal Singh
(PW-32), Avtar Singh (PW-26) and other residents of Hyderabad and requested F
them to join hands with them in removing deceased from being a religious
head. A-7 shifted to Hyderabad and got accommodation through PW-26 at
Hyderabad. A-1 and A-2 held secret meetings in Kishan Bagh Chavani and
made efforts to enlist services of Sikh youth to liquidate deceased Joga Singh.
A-1, A-2, A-3, A-4, A-5 to A-9 held number of meetings in the house of A-
2. G
In the month of February 1989, during the examination of B.E. II year
at G.N.D.E. College, numbers of students including A-4 were caught while
they were indulging in mal-practices. At that time deceased refused to interfere
with the enquiry in the matter. At that time, A-3 and A-4 nourished hatred H
1192 SUPREME COURT REPORTS [2004) 2 S.C.R.
A against the deceased. A-1 to A-9 entered into criminal conspiracy to do away
with deceased. A-1 was mastermind of conspiracy for liquidating the deceased.
A-5 and AM7 were entrusted with the job of securing weapons. A-2 and A-
3 provided shelter and finance for the operation, A-1 was entrusted to select
youth for operation of annihilation, while A-6 was to provide information
B and conveyance. A-8 and A-9 were entrusted with execution of annihilation
of deceased. In pursuance of said conspiracy, A-5 and A-9 went to Punjab
and secured A.K.47 rifles, one .32 revolver and 200 rounds of ammunition.
The accused persons surveyed the topography of proposed scene of offence
and were noticed late in the night of29.3.89. On 24.3.89 A-1, A-7, A-8 and
C
A-9 alongwith Professor Darshan Singh Ragi visited Bidar when the latter
attended Keertan arranged by some devotees. At that time, the plan of action ·-
proposed to liquidate Joga Singh could ·not be executed. A-8 through A-6 (
secured a red colour Maruti Car bearing Registration No. AEY 222 belonging
to PW-11 on payment of Rs. 64,000 A-7, A-8 and A-9 visited Bidar on
28.3.1989 in the said Maruti Car and contacted A-3, A-4 and A-5 to track
down the movements of deceased Joga Singh. In pursuance of said criminal ,_
D conspiracy, A-5, A-7, A-8 and A-9 wfnt to the house of deceased in the red
colour Maruti Car while A-5 was waiting in the Car. A-8 armed with a .32
Revolver was guarding at the scene. A-7 and A-9 entered the house armed
with AK.47 assault rifle. On 30.3.89 at about 21.05 liours, while PW-1 was
serving dinner while other family members of deceased were witnessing the
E T. V. in the drawing-cum-dining hall, A-7 and A-9 entered into the drawing (
cum dinning hall, opened fire with A.K. Assault rifle, pumped_bullets on
Joga Singh who succumbed to gun shot injuries and on seeing the same
Devender Singh (PW-I) and Balwanth Singh (PW-2) raised cries, tried to
---
chase them, but the A- 7 and A-9 while retreating fired at them
indiscriminatively to scare them away. PW-1 chased them upto main road
F and came to know through P. Satyanarayan ( PW-8) that 4 to 5 persons fled
away in a red Maruti Car towards Darussalam while scaring the public by
opening fire in the air. A-5, A-7 and A-9 returned to the house where they
were staying and tried to quit the house immediately. Meanwhile Darshan
Singh (PW-14) .and others surrounded the house in which A-5, A-7 and A-
G 9, tried to apprehend them, bu~ they fled away into the dark. A-8 who made
attempt to escape on Luna bearing Registration No. AEA 1326 was surrounded
by them. He left the Luna and took to heels and he was chased by them and
on finding no way to escape, he fired in the air to scare them and finally shot
himself dead with his Revolver.
H On receipt of the complaint a case (Cr. No. 63/89) under Section 302
ESH ER SINGH 1·. STATE OF A.P. IPASA VAT . .I.] 1193
-- IPC and Sections 25 and 27 of the Arms Act was registered, inquest was
conducted over the dead body, and it was sent for post mortem. Blood stained
A
clothes of the deceased, empty cartridges and spent bullets were seized under
panchanamas. Residential portion of house of A-7 was searched and a driving
license, a receipt, H.P. Gas cylinder, clothes, utensils and other household
articles were seized. Naganath (PW-15) identified A-7 to be Mohinder Singh
alias Satwender Singh@ Satta involved in number of terrorist cases in Punjab
B
and Haryana. C. Narasingha Rao (PW-47) seized the application form,
reservation slip written by A-5 for himself and A-9 for their return journey
from Delhi to Hyderabad. Subsequently A-7 was killed in an encounter in the
intervening night of 16/17-5-1989. In that regard also one A.K. rifle was
seized from his possession which was deposited in the Court of Judicial c
Magistrate of First Class, Sangrur. A-3, A-6, and A-5 were arrested on
~
3.4.1989, 7.4.1989 and 20.4.1989 respectively. Confessional statement of A-
5 was recorded under TADA and A-2 and A-1 were arrested on 27.4.1989
and 11.5.1989 respectively.
The trial Court on the basis of evidence tendered by PWs 16 and 32 as D
corroborated by the confessional statement of A-5 held that the accused
appellant Esher Singh had committed the offence punishable under Section
4 of TADA. It was concluded that A-1 was giving provocative speeches for
formation of Khalistan and was inciting violence fanning the religious feelings.
Therefore the accusations clearly established commission of offence punishable
E
- under Section 4 of TADA. It further came to hold that the other accusations
were not established. It was noted that the two assailants who fired the guns
leading to the death of the deceased were not identified. Since some of the
statements made in Court were not stated during investigation, the trial Court
did not attach any importance thereto.
F
- In support of the appeal filed by accused Esher Singh, Mr. R.K. Jain
learned senior counsel submitted that the evidence of PWs 16 and 32 do not
prove the accusations. It was not stated during investigation regarding the
need for establishing Khalistan or about the claim alleged to have been made
that the accused appellant was Deccan Bhindrawala. Merely because he was
wearing clothes of a particular colour, that also did not establish commission G
of any offence. Statements made for the first time in court without having
been told during investigation should not have been acted upon by the trial
Court. No specific instance of the so called statements that allegedly led
communal dis-harmony or fanning of religious feelings, and the nature of
provocation alleged to have been made in the speeches fo.r formation of H
1194 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Khalistan was stated. The alleged confessional statement could not be relied
upon because A-5 who was claimed to have made the confession died on
13 .4.1991, even before the charges were framed and therefore was not
admissible in law. Even otherwise, the so called confessional statement. was
recorded when the custody of A-5 was illegal as was observed by the High
Court of Andhra Pradesh in Writ Petition No.14403/1989. The High Court
B has categorically held that the custody was illegal for the period between
31.3.1989 and 1.10.1989. Reference was made to Kalpnath Rai v. State -..
- I
(Through CBI), [1997] 8 SCC 732 to contend that the conclusions drawn by
the trial Court were erroneous. In essence, it was submitted that the trial
Court was not justified in convicting the accused Esher Singh.
c Learned counsel for the State submitted that A-5 had categorically
(
stated about the involvement of A-1. Not only PWs 16 and 32 but other
witnesses i.e. PWs I, 3, 14, 17; 19, 21 .and 24 spoke in detail about the role
played by various accused persons. The evidence of PW-21 ·has not been
discarded and the evidence of PW-24 should not have been dis-believed on
D mere surmises. The role played by accused Esher Singh was graphically
described by the prosecution witnesses and the trial Court has noted them.
Therefore, the consideration should not have been restricted only to the
evidence of PWs 16 and 32. The pamphlet distributed were published by A-
l and it clearly indicates what was in the mind of accused persons regarding
E giving a boost to the Khalistan movement and creating communal disturbances
and disharmony. The evidence of certain witnesses has been discarded on the
ground ofrelationship, which is not the correct approach. Merely because A-
5 died before charges were framed, that docs not affect the confessional
statement which has been held to be voluntary. On the peculiar facts of the
case, when initially ·A-5 was not arrayed as an accused subsequently the
F doubts regarding certain aspects were set right by this Court and proceedings
continued so far as A-5 is concerned, the fact that he died before framing of
charge cannot affect the authenticity· of his confessional statement. Even if
for the sake of argument it is conceded that the same was not to be acted
upon in terms of Section 15 of TADA, yet by operation of Section 30 of the
G Indian Evidence Act, 1872 (in short the 'Evidence Act') it can be considered.
Initially, the trial Court had held that TADA had no application to the facts
of this case but this Court held that TADA applies. There is no magical
charm in the expression "charged and tried" used in Section 15 of TADA. It
can very well mean charged for trial. A person can be treated to be charged
when allegations are made and not necessarily when charges are framed. The
H confession of a co-accused is in the nature of substantive nature and Kalpnath
ESHERSJNGH v. STATEOFA.P. [PASAYAT.J.] 1195
Rai's case (supra) has been over-ruled in State Through Superintendent of A
Police, CBI/SIT v. Nalini and Ors., [1999] 5 SCC 253. The /chain of
circumstances were clearly established, the car used for commission of the
offence was traced and therefore the circumstances clearly established that
the accused respondents along with others named were responsible for the
killing of deceased and therefore the acquittal from offence relatable to Section B
1208 and 302 cannot be maintained. The use of the cur standing near the
house of the deceased and the purchase and sale of the car are links which
have been overlooked. The circumstances like association of an accused with
others, and sharing of common/similar animus against the deceased have
been established. A-1 and A-2 had strong animosity and motive so far as
deceased is concerned. The movement in the close proximity of the house of C
deceased Joga Singh clearly brings out the patent object and conspiracy has
been well established. According to the prosecution version, two persons
entered, fired and killed. The search for the accused started immediately
when people came running. One person who was traveling on a Luna was
chased committed suicide. There is evidence to show that he was A-8. The
materials on record show that the deceased A-5 was connected with accused D
Gurrnail and this also provides an additional link to the chain of circumstances.
The motive of the crime has been spoken to by various witnesses. The
animosity of A-1 so far as deceased is concerned is well brought out by the
evidence which shows that because of deceased's refusal to pay money he
was killed. Prior to that, he was ex-communicated, was receiving threatening E
letters and was being made responsible for the killing of six Sikh students
through riots. Significance of the statement relating to the Blue Star Operation
and the proclamation of A-1 to be Deccan Bhindrawala are circumstances of
great significance. The deceased accused was falsely claiming to be one
Mohinder Singh, and had got an identity card in that name. But the evidence...
shows that he was A-8. His presence in the car used for get away and the F
-- evidence showing that he knew A-1 closely and that they were meeting and
moving together has been established. Ext. P-18 shows that in October 1988
there was a demand of money. These aspects have not been properly
considered.
The rigor of Section 15 TADA which is diluted after the amendment G
has also been noted in Nalini 's case (supra) and has full application to the
facts of the case. A-5 was shown as an accused in the charge sheet.
. Subsequently there was an order of discharge, which was set aside by this
Court so far as proceedings under TADA are concerned.
H
1196 SUPREME COURT REPORTS [2004) 2 S.C.R.
A Learned counsel for Balbir Singh, the son of the deceased Joga Singh
adopted the submissions made by learned counsel for the State. Additionally,
according to him, the too technical interpretation of the expression "charged
and tried" would not be in line with the legislative intent. The Act has been
enacted to take care of all terrorist activities. Since direct evidence is hard to
find because of fear psychosis created by the accused persons and normally
B people try to remain behind doors. Special provisions relating to nature of
substantive evidence have been provided in TADA. Both learned counsel for
the State and Balbir Singh submitted that this is a fit case where Section 3(3)
of TADA and offences under the IPC have been clearly found established.
C We shall first deal with the question whether confessional statement of
A-5 can be acted upon. Section 15 reads as follows:
(
"15. Certain confessions made to police officers to be taken into
consideration. - (1) Notwithstanding anything in the Code or in the
Indian Evidence Act, 1872 ( 1, of 1872), but subject to the provisions
D of this section, a confession made by a person before a police officer
not lower in rank than a Superintendent of Police and recorded by
such police officer either in writing or on any mechanical device like
· cassettes, tapes or soundtracks from out of which sounds or images
can be reproduced, shall be admissible in the trial of such person or
co-accused, abettor or conspirator for an offence under this Act or
E rules m~de thereunder :
Provided that co-accused, abettor or conspirator is charged and
tried in the same case together with the accused.
(2) The police officer shall, before recording any confession under
F sub-section (1), explain to the person making it that he is not bound
to make a confession and that, if he does so, it may be used as
evidence against him and such police officer shall not record any
such confession unless upon questioning the person making it; he has
reason to believe that it is being made voluntarily."
G (Underlined for emphasis)
Crucial words in the provision are "charged and tried". The use of the
expression "charged and tried" imposes cumulative conditions. Firstly, the
two persons who are the accused and the co-accused in the sense used by the
Legislature under Section 15, must be charged in the same trial, and secondly,
H they must be tried together. Kalpnath Rai 's case (supra) has been overruled
ESHER SINGH v. STATE OF A.P. [PASA YAT, J.J 1197
in Nalini 's case (supra) making the position clear that the confession of a co- A
accused is substantive evidence.
Section 2(b) of the Code of Criminal Procedure, 1973 (in short the
'Code') defines "charge" as follows:
"2(b) 'charge' includes any head of charge when the charge contains B
more heads than one:"
The Code does not define what a charge is. It is the precise formulation of
the specific accusation made against a person who is entitled to know its
nature at the earliest stage. A charge is not an accusation made or information
given in abstract, but an accusation made against a person in respect of an C
act committed or omitted in violation of penal law forbidding or commanding
it. In other words, it is an accusation made against a person in respect of an
offence alleged to have been committed by him. A charge is formulated after
inquiry as distinguished from the popular meaning of the word as implying
inculpation of a person for an alleged offence as used in Section 224 of IPC. D
Chapter XVII of the Code deals with "charge". Section 211 thereof
deals with content of charge. Section 273 appearing in Chapter XXIII provides
that evidence is to be taken in presence of the accused. The person becomes
an accused for the purpose of trial after the charges are framed. The expression
used in Section 15 TADA is "charged and tried". The question of having a E
trial before charges are framed does not arise. Therefore, the only interpretation
that can be given. to the expression "charged and tried" is that the use of a
confessional statement against a co-accused is permissible when both the
accused making the confessional statement and the co-accused are facing
trial after framing of charges. In State of Gtljarat v. Mohammed Atik and
Ors., (1998] 4 sec 351 this position was highlighted. Unless a person who F
charged faces trial along with the co-accused the confessional statement of
the maker of the confession cannot be of any assistance and has no evidentiary
value as confession when he dies before completion of trial. Merely because
at some stage there was some accusation, unless charge has been framed and
he has faced trial till its completion, the confessional statement if any is of G
no assistance to the prosecution so far as the co-accused is concerned. In fact,
in para 10 in Mohammed Atik 's case (supra) it was observed that when it was
impossible to try them together the confessional statement has to be kept out
of consideration.
So far as application of Section 30 of Evidence Act is concerned, in H
1198 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Nalini's case (supra) this question was examined and it was held in paragraphs
90 and 91 as follows:
"90. But the amendment of 1993 has completely wiped out the said
presumption against a co-accused. from the statute-book. In other
words, after the amendment a Designated Court could not do what it
B could have done before the amendment with the confession of one
accused against a co-accused. Parliament has taken away such
empowerment. Then what is it that Parliament did by adding the
words in Section 15( I) and by inserting the proviso? After the
amendment the Designated Court could use the confession of one
C accused against another accused only if two conditions are fulfilled:
(1) The co-accused should have been charged in the same case along
with the confessor.
(2) He should have been tried together with the confessor in the same
case.
D
Before amendment the Designated Court had no such restriction as
the confession of an accused could have been used against a co-
accused whether or not the latter was charged or tried together with
the confessor.
E 91. Thus the amendment in 1993 was a clear climbing down from a
draconian legislative fiat which was in the field of operation prior to
the amendment insofar as the use of one confession against another
accused was concerned. The contention that the amendment in 1993
was intended to make the position more rigorous as for a co-accused
is, therefore, untenable."
F
So far as the appeal filed by accused Esher Singh is concerned, the
basic question is that even if the confessional statement purported to have
been made by A-5 is kept out of consideration, whether residuary material is
sufficient to find him guilty. Though it is true as contended by learned counsel
G for the accused-appellant Esher Singh that some statements were made for
the first time in Court and not during investigation, it has to be seen as to
what extent they diluted the testimony of Balbeer Singh and Dayal Singh
(PWs 16 and 32) used to bring home the accusations. A mere elaboration
cannot be termed as discrepancy. When the basic features are stated, unless
the elaboration is of such nature that it creates a different contour or colour
·H of the evidence, the same cannot be said to have totally changed the
ESHER SINGH v. STATE OF A.P. (PASA YAT. .I.] 1199
- complexion of the case. It is to be noted that in addition to the evidence of A
PWs 16 and 32, the evidence of S. Narayan Singh (PW-21) provides the
necessary links and strengthens the prosecution version. We also find substance
in the plea taken by learned counsel for the State that evidence of Amar
Singh Bungai (PW-24) was not tainted in any way, and should not have been
discarded and dis-believed only on surmises. Balbeer Singh (PW-3) the son
of the deceased has also stated about the provocative statements in his evidence. B
- Darshan Singh (PW-14) has spoken about the speeches of the accused Esher
Singh highlighting the Khalistan movement. We find that the trial Court had
not given importance to the evidence of some of the witnesses on the ground
that they were relatives of the deceased. The approach is wrong. Mere
relationship does not dis-credit the testimony of a witness. What is required C
is careful scrutiny of the evidence. If after careful scrutiny the evidence is
found to be credible and cogent, it can be acted upon. In the instant case, the
trial Court did not indicate any specific reason to cast doubt on the veracity
of evidence of the witnesses whom it had described to be the relatives of the
deceased. PW-24 has categorically stated about the provocative speeches by
A-1. No definite cross-examination on provocative nature of speech regarding D
Khalistan movement was made, so far as this witness is concerned.
Section 4 of TAD17·reads as under:
"4. Punishment for disruptive activities. - (l) Whoever commits or
conspires or attempts to commit or abets, advocates, advises, or E
knowingly facilitates the commission of, any disruptive activity or
any act preparatory to a disruptive activity shall be punishable with
imprisonment for a term which shall not be less than five years but
which may extend to imprisonment for life and shall also be liable to
fine.
F
(2) For the purposes of sub-section (1), "disruptive activity" means
any action taken, whether by act or by speech or through any other
media or in any other manner whatsoever, -
(i) which questions, disrupts or is intended to disrupt, whether
directly or indirectly, the sovereignty and territorial integrity of G
India; or
(ii) which is intended to bring about or supports any claim,
whether directly or indirectly, for the cession of any part of
India or the secession of any part of India from the Union.
H
1200 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Explanation. - For the purposes of this sub-section, -
(a) 'cession' includes the admission of any claim of any foreign
country to any part of India, and
(b) 'secession' includes the assertion of any claim to determine
whether a part of India will remain within the Uniori.
B
(3) Without prejudice to the generality of the provisions of sub-section
(2), it is hereby declared that any action taken, whether by act or by
speech or through any other media or in any other manner whatsoever,
which - .
-
c (a) advocates, advises, suggests or incites; or
(b) predicts, prophesies or pronounces or otherwise expresses,
-
(
in such manner as to incite, advise, suggest or prompt, .
the killing or the destruction of a person bound by oath under the
Constitution to uphold the sovereignty and integrity of India or any
D public servant shall be deemed to be a disruptive activity within the
meaning of this section.
(4) Whoever harbours or conceals, or attempts to harbour or conceal,
any disruptionist shall be punishable. with imprisonment for a term
which shall not be less than five years but which may extend to
E imprisonment for life and shall also be liable to fine."
1
The evidence makes the position crystal clear so far as accusations
against appellant Esher are concerned.
Section 4 of TADA covers a wide range of disruptive activiti~s. It not
F only encompasses commission of disruptive activities, but also conspiracy,
attempt, abetment, advocating, advising or facilitation of such activity or an
act preparatory to such activity. What is disruptive activity is described in
sub-section (2) of Section 4. Sub-section (3) further widens the coverage of
generality given by sub-section (2). For the purpose of applying sub-section
G (2), the explanation appended thereto assumes great significance for the case
at hand; more particularly in view of the inclusive definition of "secession".
Demand for Khalistan .is clearly encompassed by the said definition.
The ingredients necessary to bring in application of Section 4 of TADA
have been clearly established. Therefore, the appeal filed by Esher Singh is
H devoid of merit and stands dismissed as the sentence imposed is found to be
ESHER SINGH v. STATE OF A.P. [PASAYAT, J.] 1201
commensurate with the gravity of the offence and also needs no interference. A
)
Coming to the appeal filed by Balbir Singh, we shall first deal with the
objection regarding maintainability of the appeal, as learned counsel for the
accused Esher Singh has questioned maintainability thereof.
A doubt has been raised in many cases about the competence of a B
private party as distinguished from the State, to invoke the jurisdiction of this
.,__ Court under Article 136 of the Constitution of India, 1950 (in short the
'Constitution') against a judgment of acquittal by the High Court. We do not
see any substance in the doubt. Appellate power vested in this Court under
- Article 136 of the Constitution is not to be confused with ordinary appellate
power exercised by appellate courts and appellate tribunals under specific
statutes. It is a plenary power, 'exercisable outside the purview of ordinary
c
' law' to meet the pressing demands of justice (See Durga Shankar Mehta v.
Thakur Raghuraj Singh, AIR (1954) SC 520). Article 136 of the Constitution
neither confers on anyone the right to invoke the jurisdiction of this Court
nor inhibits anyone from invoking the Court's jurisdiction. The power is D
vested in this Court but the right to invoke the Court's jurisdiction is vested
in no one. The exercise· of the power of this Court is not circumscribed by
any limitation as to who may invoke it. Where a judgment of acquittal by the
High Court has led to a serious miscarriage of justice this Court cannot
refrain from doing its duty and abstain from interfering on the ground that
a private party· and not the State has invoked the Court's jurisdiction. We do E
- not have slightest doubt that we can entertain appeals against judgments of
acquittal by the High Court at the instance of interested private parties also.
The circumstance that the Code does not provide for an appeal to the High
Court against an order of acquittal by a subordinate Court, at the instance of
a private party, has no relevance to the question of the power of this Court
F
-- under Article 136. We may mention that in Mohan Lal v. Ajit Singh, (1978]
3 SCC 279 this Court interfered with a judgment of acquittal by the High
Court at the instance of a private party. An apprehension was expressed that
if appeals against judgments of acquittal at the instance of private parties are
permitted there may be a flood of appeals. We do not share the apprehension.
Appeals under Article 136 of the Constitution are entertained by special G
leave granted by this Court, whether it is the State or a private party that
invokes the jurisdiction of this Court, and special leave is not granted as a
matter of course but only for good and sufficient reasons, well established by
- the practice of this Court.
Above was the view expressed by this Court in Arunachalam v. P.S.R. H
1202 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Sadhanantham and Anr., [ 1979] 2 sec 279. The view has again been reiterated
by the Constitution Bench in P.S.R. Sadhanantham v. Arunachalam and
Anr., [ 1980] 3 SCC 141.
It is to be seen whether the broad spectrum spread out of Article 136
fills the bill from the point of view of "procedure established by la'"'.". In
B express terms, Article 136 does not confer a right of appeal on a party as
such but it confers a wide discretionary power on this Court to interfere in
suitable cases. The discretionary dimension is considerable but that relates to
the power of the Court. Article 136 is a special jurisdiction. It is residuary
power; it is extraordinary in its amplitude, its limits, when it chases injustice,
C . is the sky itself. This Court functionally fulfils itself by reaching out to
·~
injustice wherever it is and this power is largely derived in the common run
of cases from Article 136. Is it merely a power in the court to be exercised (
in any manner it fancies? Is there no procedural limitation in the manner of
exercise and the occasion for exercise? Is there no duty to act fairly while
hearing a case under Article 136, either in the matter of grant of leave or,
D after such grant, in the final disposal of the appeal? There cannot be even a
shadow of doubt that there is a procedure necessarily implicit in the power·
vested in this Court. The founding fathers unarguably intended in the very
terms of Article 136 that it shall be exercised by the judges of the highest
Court of the land with scrupulous adherence to settled judicial principles,
E well e~tablished by precedents in our)urisprudence.
It is manifest that Article 136 is of composite structure, is power-cum-
procedure - power in that it vests jurisdiction in this Court and procedure in
that it spells a mode of hearing. It obligates the exercise of judicial discretion
and the mode of hearing so characteristic of the court process with th,e avowed
F purpose of averting miscarriage of justice. In the instant case, both the. State
and Balbir Singh (son of the deceased) have questioned correctness of the
impugned judgment. Appeal filed by Balbir Singh is first in point of time.
We are of the view that on. the facts of the case, there is no question of
holding the appeal filed by Balbir Singh to be not maintainable.
G The aspects highlighted by learned, counsel for the State and Balbir
Singh do not disturb the positive conclusions of the trial Court about the
absence of any positive and cogent evidence so far as the respondents except
. accused Esher Singh is concerned. None of the witnesses examined on behalf
of the. prosecution stated anything about the descriptive particulars of the
H assailants. There was also no evidence of A-1 indulging in any manner armed ·-
ESHER SINGH v. STATE OF A.P. [PASAYALI.] 1203
with firearms or explosives. The evidence of witnesses goes only to the A
extent of showing, as noted earlier that A-I was giving provocative speeches
for formation of Khalistan and incitiiJ.g the Sikhs for violence fanning the
religious feelings. The evidence shows that A-I was inciting the Sikhs to
fonn separate Khalistan State and making Hyderabad as base for Khalistan
movement.
B
Merely because the accused A- I was holding the deceased, as alleged,
to be responsible for the killing of six Sikh students that per se does not
prove conspiracy. Section 120B of IPC is the provision which provides for
punishment for criminal conspiracy. Definition of 'criminal conspiracy' given
in Section I 20A reads as follows: c
"120A- When two or more persons agree to do, or cause to be done,-
(I) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy; D
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'.
E
- 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 objept, (c) an agreement or understanding between two or more of the
accused persons whereby, they become definitely committed to co-operate
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 F
an overt act. The essence of a criminal conspiracy is the unlawful combination
and ordinarily the offence is complete when the combination is framed. 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 G
offence. Law making conspiracy a crime, is designed to curb immoderate
power to do mischief which is gained by a combination of the minds. 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. The conspiracy is held to be continued and renewed H
1204 SUPREME COURT REPORTS (2004] 2 S.C.R.
A as to encompass all its members wherever and whenever any member of the
conspiracy acts in furtherance of the common design. (See: American
Jurisprudence Vol.II See 23, p. 559). For an offence punishable under section
120-B, 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
B necessary implication. 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,
C actus contra actum, capable of being enforced, if lawful, punishable if for a
criminal object or for use of criminal means.
(
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
D 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.
E Therefore, the circumstances proved before, during and after the occurrence
-
have to be considered to decide about the complicity of the accused
In Halsbury's Laws of England (vide 4th Ed. Vol.11, page 44, page
58), the English Law as to conspiracy has been stated thus:
"Conspiracy consists in the agreement of two· or more persons to do
F an unlawful act, or to do a lawful act by unlawful means. It is an
indictable offence at common law, the punishment for which is
imprisonment or fine or both in the discretion of the Court.
The essence of the offence of conspiracy is the fact of combination
by agreement. The agreement may be express or implied; or in part
G express and in part implied. The conspiracy arises and the offence is
committed as soon as the agreement is made; and the offence continues
H
to be committed so long as the combination persists, that is until the
conspiratorial agreement is terminated by completion of its
performance or by abandonment or frustration or however, it may be.
The actus rues in a conspir_acy is the agreement to execute the illegal
--
ESHERSINGH v.STATEOFA.P.[PASAYAT.J.J 1205
conduct, not the execution of it. It is not enough that two or more A
persons pursued the same unlawful object at the same time or in the
same place; it is necessary to show a meeting of minds, a consensus
to affect an unlawful purpose. It is not, however, necessary that each
conspirator should have been in communication with every other."
There is no difference between the mode of proof of the offence of B
-- conspiracy and that of any other offence, it can be established by direct or
circumstantial evidence. (See: Bhagwan Swarup Lal Bishan Lal etc. etc v.
State_ of Maharashtra, AIR (1965) SC 682 at p.686)
It was held that the expression "in reference to their common intention"
in Section 10 is very comprehensive and it appears to have been designedly C
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 co-conspirator,
after the conspiracy was formed, will be evidence against the other before he
entered the field of conspiracy or after he left it. Anything said, done or
written is a relevant fact only. D
"as against each of the persons believed to be so conspiring, as
well as 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".
"In short, the section can be analysed as follows: (1) There shall E
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 F
- 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 co-conspirator and not in his favour."
We are aware of the fact that direct independent evidence of criminal G
conspiracy may not ordinarily and is generally not available and its existence
invariably is a matter of inference except as rare exceptions. The inferences
are normally deduced from acts of parties in pursuance of a purpose in
common between the conspirators. This Court in V.C. Shukla v. State (Delhi
Admn.), [1980] 2 sec 665 held that to prove criminal conspiracy there must H
1206 SUPREME COURT REPORTS (2004] 2 S.C.R.
A be evidence di~ect or circumstantial to show that there was an agreement
between two or more persons to commit an offence. There must be a meeting
of minds resulting in ultimate decision taken by the conspirators regarding
the commission of an offence and where the factum of conspiracy is sought
to be inferred from circumstances, the prosecution has to show that the
B circumstances give rise to a conclusive or irresistible inference of an agreement
between two or more persons to commit an offence. As in all other criminal
offences, the prosecution has to discharge its onus of proving the case against
the accused beyond reasonable doubt. The circumstances in a case, when
taken together on their face value, should indicate the meeting of the minds
between the conspirators for the intended object of committing an illegal act
C or an act which is not illegal, by illegal means. A few bits here and a few
bits there on which the prosecution relies cannot be held to be adequate for
connecting the accused with the commission of the crime of criminal I
conspiracy. It has to be shown that all means adopted and illegal acts done
were in furtherance of the object of conspiracy hatched . .The circumstances
relied for the purposes of drawing an inference should be prior in point of
D time than the actual commission of the offence in furtherance of the alleged
conspiracy.
Privacy and secrecy are more characteristics of a conspiracy, than of a
. loud discussion in an elevated place open to public view. Direct evidence in
proof of a conspiracy is seldom available; offence of conspiracy can be
E proved by either direct or circumstantial evidence. It is not always possible
to give affirmative evidence about the date of the formation of the criminal
conspiracy, about the persons who took part in the formation of the conspiracy,
about the object, which the objectors set before themselves as the object of
conspiracy, and about the manner in which the object of conspiracy is to be
F carried out, all this is necessarily a matter of inference.
The provisions of Section 120A and 120B, IPC have brought the law
of conspiracy in India in line with the English Law by making the overt act
unessential when the conspiracy is to. commit any punishable offence. The
English Law on this matter is well settled. Russell on Crime (12 Ed.Vol.I,
G p.202) may be usefully noted-
"The gist of the offence of conspiracy then lies, not in doing the
,_
act, or effecting the purpose for which the conspiracy is formed, nor
in attempting to do them, nor in inciting others to do them, but in the
forming of the scheme or agreement between the parties, agreement
H is essential. Mere knowledge, or even discussion, of the plan is not,
ESHER SINGH v. STATE OF A.P. [PASAYAT, J.] 1207
- per se, enough." A
Glanville Williams ~n the "Criminal Law" (Second Ed. P. 382) states-
"The question arose in an Iowa case, but it was discussed in terms of
conspiracy rather than of accessoryship. D, who had a grievance
against P, told E that ifhe would whip P someone would pay his fine. B
E replied that he did not want anyone to pay his fine, that he had a
grievance of his own against P and that he would whip him at the
first opportunity. E whipped P. D was acquitted of conspiracy because
there was no agreement for 'concert of action', no agreement to 'co-
--- \
operate'.
Coleridge, J. while summing up the case to Jury in Regina v. Murphy,
c
[1837] 173 ER 502 at p. 508 states:
"I am bound to tell you, that although the common design is the
root of the charge, it is not necessary to prove that these two parties
came together and actually agreed in terms to have this common D
design and to pursue it by common means, and so to carry it into
execution. This is not necessary, because in many cases of the most
clearly established conspiracies there are no means of proving any
such thing and neither law nor common sense requires that it should
be proved. If you find that these two persons pursued by their acts the
same object, often by the same means, one performing one part of an
E
.....,._ act, so as to complete it, with a view to the attainment of the object
which they were pursuing, you will be at liberty to draw the conclusion
that they have been engaged in a conspiracy to effect that object. The
question you have to ask yourselves is, had they this common design,
and did they pursue it by these common means the design being F
unlawful."
As noted above, the essential ingredient of the offence of criminal
conspiracy is the agreement to commit an offence. In a case where the
agreement is for accomplishment of an act which by itself constitutes an
offence, then in that event no overt act is necessary to be proved by the G
prosecution because in such a situation, criminal conspiracy is established by
proving such an agreement. Where the conspiracy alleged is with regard to
~
commission of a serious crime of the nature as contemplated in Section 120B
read with the proviso to sub-section (2) of Section 120A, then in that event
mere proof of an agreement between the accused for commission of such a
H
1208 SUPREME COURT REPORTS [2004] 2 S.C.R.
A crime alone is enough to bring about a conviction under Section 120B and
the proof of any overt act by the accused or by any one of them would not
\
be necessary. The provisions, in such a situation, do not require that each and
every person who is a party to the conspiracy must do some overt act towards
the fulfillment of the object of conspiracy, the essential ingredient being an
agreement between the conspirators to commit the crime and if these
B requirements and ingredients are established, the act would fall within the
trapping of the provisions contained in section 120B [See: S.C. Bahri v. State
of Bihar, AIR (1994) SC 2420.
C
The conspiracies are not hatched in open, by their nature, they are
secretly planned, they can be proved even by circumstantial evidence, the
lack of direct evidence relating to conspiracy has no consequence. [See: E.K.
Chandrasenan v. State of Kera/a, AIR (1995) SC 1066.
-
(
In Kehar Singh and Ors. v. The State (Delhi Administration), AIR
(1988) SC 1883 at .p. 1954, this Court observed:
D
"Generally, a conspiracy is hatched in secrecy and it may be
difficult to adduce direct evidence of the same. The prosecution will
often rely on evidence of acts of various parties to infer that they
were done in reference to their common intention. The prosecution
will also more often rely upon circumstantial evidence. The conspiracy
E can be undoubtedly proved by such evidence direct or circumstantial.
But the court must enquire whether the two persons are independently
pursuing the same end or they have come together to the pursuit of
the unlawful object. The former does not render them conspirators,
but the latter does. It is, however, essential that the offence of
conspiracy required some kind of physical manifestation of agreement.
F The express agreement, however, need not be proved. Nor actual
meeting of the two persons is necessary. Nor it is necessary to prove
the actual words of communication. The evidence as to transmission
of thoughts sharing the unlawful design may be sufficient. Conspiracy
can be proved by circumstances and other materials. (See: State of
G Bihar v. Paramhans, (1986) Pat LJR 688. To establish a charge of
conspiracy knowledge about indulgence in either an illegal act or a
legal act by illegal means is necessary. In some cases, intent of
unlawful use being made of the goods or services in question may be
inferred from the knowledge itself. This apart, the prosecution has
not to establish that a particular unlawful use was intended, so long
H
ESHERSINGH v.STATEOFA.P.[PASAYAT,J.) 1209
- as the goods or service in question could not be put to any lawful use.
Finally, when the ultimate offence consists of a chain of actions, it
A
would not be necessary for the prosecution to establish, to bring
home the charge of conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do so, so long as it is
known that the collaborator would put the goods or service to an
unlawful use. (See: State of Maharashtra v. Som Nath Thapa, JT B
(1996) 4 SC 615.
The most important ingredient of the offence being the agreement
between two or more persons to do an illegal act. In a case where criminal
conspiracy is alleged, the court must inquire whether the two persons are C
independently pursuing the same end or they have come together to pursue
the unlawful object. The former does not render them conspirators but the
latter does. For the offence of conspiracy some kind of physical manifestation
of agreement is required to be established. The express agreement need not
be proved. The evidence as to the transmission of thoughts sharing the unlawful
act is not sufficient. A conspiracy is a continuing offence which continues to D
subsist till it is executed or rescinded or frustrated by choice of necessity.
During .its subsistence whenever any one of the conspirators does an act or
series of acts, he would be held guilty under Section 120-B IPC.
In Ajay Agarwal v. Union ofIndia and Ors., JT ( 1993) 3 SC 203, it was
held as follows:- E
- xxxxxx
"8 ..... lt is not necessary that each conspirator must know all the
details of the scheme nor be a participant at every stage. It is necessary
that they should agree for design or object of the conspiracy.
Conspiracy is conceived as having three elements: ( 1) agreement; (2) F
between two or more persons by whom the agreement is effected;
and (3) a criminal object, which may be either the ultimate aim of the
agreement, or may constitute the means, or one of the means by
which that aim is to be accomplished. It is immaterial whether this is
found in the ultimate objects. The common law definition of 'criminal G
conspiracy' was stated first by Lord Denman in Jones' case that an
indictment for conspiracy must "charge a conspiracy to do an unlawful
act by unlawful means" and was elaborated by Willies, J. on behalf
of the judges while referring the question to the House of Lords in
Mulcahy v. Reg and House of Lords in unanimous decision reiterated
in Quinn v. Leathern: H
1210 SUPREME COURT REPORTS (2004] 2 S.C.R.
A '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, or to do a
lawful act by unlawful means. So long as such a design rest in intention
only, it is not indictable. When two agree to carry it into effect, the
very plot is an act in itself, and the act of each of the parties, promise
against promise, actus contra actum, capable of being enforced, if
B lawful; punishable of for a criminal object, or for the use of criminal
means.'
This Court in E.G. Barsay v. State of Bombay held:
"The gist of. the offence _is an agreement to break the Jaw. The
c parties to such an agreement will be guilty of criminal conspiracy,
though the illegal act agreed to be done has not been done. So too,
(
it is 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. Under Section 43 of the Indian Penal Code, an act would be
illegal if it is an offence or if it is prohibited by law."
D
In Yash Pal Mittal v. State of Punjab, [1977] 4 SCC 540 the rule was laid
as follows: (SCC p. 543 para 9)
"The very agreement, concert or league is the ingredient of the
offence. It is not necessary that all the conspirators must know each
E and every detail of the conspiracy as Jong as they are co-participators
in the main object of the conspiracy. There may be so many devices
and techniques adopted to achieve the common goal of the conspiracy
and there may be division of performances in the chain of actions
with one object to achieve the real end of which every collaborator
must be aware and in which each one of them must be interested.
F
There must be unity of object or purpose but there may be plurality
of means sometimes even unknown to one another, amongst the
conspirators. In achieving the goal several offences may be committed
by some of the conspirators even unknown to the others. The only
relevant factor is that all means adopted and illegal acts done must be
G and purported to be in furtherance of the object of the conspiracy
even though there may be sometimes misfire or overshooting by
some of the conspirators. ,
In Mohammad Usman Mohammad Hussain Maniyar and Ors. v.
State of Maharashtra, [1981] 2 SCC 443, it was held that for an
H offence under Section l 20B IPC, the prosecution need not necessarily
ESHER SINGH v. STATE OF A.P. [PASAYAT, J.] 12.11
prove that the perpetrators expressly agreed to do or cause to be done A
the illegal act, the agreement may be proved by necessary implication."
After referring to some judgments of the United States Supreme Court
and of this Court in Yash Pal Mitta/'s case (supra) and Ajay Aggarwal's case
(supra) the Court in State of Maharashtra v. Som Nath Thapa, (referred to
in Kehar Singh 's case (supra) summarized the pos,rion ·of law and the B
requirements to establish the charge of conspiracy, as under: (SCC p. 668,
para 24).
"24. The aforesaid decisions, weighty as they are, lead us to conclude
that to establish a charge of conspiracy knowledge about indulgence
in either an illegal act or a legal act by illegal means is necessary. In C
some cases, intent of unlawful use being made of the goods or services
in question may be inferred from the knowledge itself. This apart, the
prosecution has not to establish that a particular unlawful use was
intended, so long as the goods or service in question could not b~ put
to nay lawful use. Finally, when the ultimate offence consists of a D
chain of actions, it would not be necessary for the prosecution to
establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator would do, so
long as it is known that the collaborator would put the goods or
service to an unlawful use." Also see State of Kera/av. P. Sugathan
and Anr., [2000] 8 sec page 203 and Devender Pal Singh v. State E
of N.C. T. of Delhi and Anr., [2002] 5 sec 234.
Even in the light of the principles highlighted above when the evidence
is tested, the inevitable conclusion is that the trial Court was justified in
holding that accusations under Section 120B were not made out so far as the
offences under IPC are concerned. So far as the motive for. the killing is F
concerned, the evidence is clear to the extent that A-1 wanted removal of the
deceased from the bodies of various trusts and educational institutions and
not his removal from this world. In the absence of adequate material to
establish commission of offences punishable under Section 302 or 302 read
with Section 120B and Section 3(3), 5 and 6 of TADA and Section 27 of the G
Arms Act, as rightly held to have been not established by the trial Court, the
appeals filed by the State and Balbir Singh are without merit. In the ultimate,
all the three appeals are without merit and are dismissed.
B.S. Appeals dismissed.
H
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