Holding

The Supreme Court held that the prosecution failed to prove a criminal conspiracy or abetment against the appellant, rendering his conviction unsustainable.

Summary

The deceased, Jameela, was allegedly pregnant by the appellant Saju and refused to abort the pregnancy. She was later stabbed to death by accused No.1 (Biju). The prosecution alleged that Saju conspired with Biju to murder her, securing convictions under Sections 109, 120‑B and 302 IPC. On appeal, the Supreme Court examined the legal requirements for criminal conspiracy, emphasizing that an agreement and the requisite mens rea must be proved beyond reasonable doubt and that motive alone or mere co‑presence does not establish conspiracy. The Court held that there was no positive evidence linking Saju to the pregnancy, no proof of his insistence on abortion, and the circumstantial evidence of the two accused being together was insufficient to infer a conspiratorial agreement. Consequently, the prosecution failed to prove both conspiracy and abetment under Section 107 IPC, and the appellant’s conviction was set aside.

Issues considered

The prosecution proved the existence of a criminal conspiracy between the appellant and accused No.1 under Sections 120‑A/120‑B IPC.
Whether motive (pregnancy and refusal of abortion) is sufficient to infer conspiracy.
Whether circumstantial evidence of the accused being together on the date of the incident establishes a conspiratorial agreement.
Whether statements or acts of one alleged conspirator can be used against the other under Section 10 of the Evidence Act without a prima facie case of conspiracy.
Whether the charge of abetment under Section 107 IPC was proved.
Whether the conviction of the co‑accused sustains the conviction of the appellant.

Legislation cited

Indian Evidence Act, 1872s. 10
Indian Penal Code, 1860s. 107, s. 109, s. 120-8, s. 120-A, s. 120-B, s. 302

Subjects

criminal conspiracyabetmentcircumstantial evidencemotiveSection 120-ASection 10 Evidence Actreasonable doubtacquittal

Judgment

SAJU A
v.
STATE OF KERALA

NOVEMBER 15, 2000

[K.T. THOMAS AND R.P. SETHI, JJ.] B·

Penal Code, 1860.

Sections 109, l 20B & 302-Criminal Conspiracy-Essential
Ingredients-Proof of-Held, agreement to commit offence and mens rea of C
crime-Motive by itself not proof of conspiracy-Prosecution alleging illicit
relations between accused and deceased-Deceased refusing to terminate
pregnancy-Deceased fatally stabbed by other accused-Offence alleged to
have been committed by other accused in conspiracy with accused-Whether
criminal conspiracy established-No positive evidence attributing pregnancy D
of deceased to accused or insistence for abortion by accused-Both accused
seen together qn date of occurrence but not proved beyond doubt that they
were together at place of occurrence·-lntimacy between both accused not
suggested-Other accused not habitual criminal-Held, mere meeting by
itselfnot sufficient to infer existence ofcriminal conspiracy-On facts, exist.~nce
of circumstances suggesting hatching of criminal conspiracy absent~ E
Ingredients of abetment also not proved-Held, Conviction with aid of
Sections 120-B or 109 not Proper-Criminal.Trial-Circumstantial Evidence.

Sections 1208 & 302-Criminal conspiracy alleged-Appeal ofaccused
who had fatally stabbed deceased dismissed-Whether charge of conspiracy
against co-accused deemed to have been proved-Held, not proved-charge F
of conspiracy against co-accused failed-Whether person accused of stabbing
deceased entitled to acquittal-Held, not entitled to acquittal.

Evidence Act, 1872-Section JO-Applicability-Criminal Trial-
Appreciation of Evidence-Evidence of action or Statement of onP. accused- G
When can be used against another-Held, when two or more person had
conspired together for =ommitting offence-Penal Code, 1860--Section 120-B.

Prosecution alleged that accused-appellant developed illicit relations with
the deceased resulting in her pregnancy and when deceased declined to get
the pregnancy aborted, appellant hatched conspiracy with accused No. I to H
621
622 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A get rid of the deceased as a result of which deceased was fatally stabbed by
accused No~ 1. Trial Court on the basis of circumstantial evidence found both,
appellant and accused No. I guilty of offences under Sections 109, 120-B and
302 IPC and sentenced them to life imprisonment which was upheld in appeal
by the High Court. Aggrieved by the judgment of the High Court, both
B appellant and accused No.I have appealed to this Court which dismissed the
Special Leave Petition in relation to accused No.1.

The respondent-State contended that charge of conspiracy against
appellant should be deemed proved after dismissal of appeal of accused No.I.

C Allowing the appeal, the Court

HELD: 1. To prove the charge of criminal conspiracy the prosecution is
required to establish that two or more persons had agreed to do or caused to
be done, an illegal act or an act which is not illegal, by illegal means. It is
immaterial whether the illegal act is the ultimate object of such crime or is
D merely incidental to that object. To attract the applicability of Section 1208 it
has to be proved that all the accused had the intention and they had agreed to
commit the crime. There is no doubt that conspiracy is hatched in private and
in secrecy for which direct evidence would rarely be available. It is also not
necessary that each member to a conspiracy must know all the details of the
E conspiracy. The essential ingredient of criminal conspiracy is the agreement
to commit an offence. Besides the fact of agreement the necessary mens rea
of the crime is also required to be established. (626-H; 627-A; 633-C)

Yash Pal Mittal v. State of Punjab AIR, (1977) SC 2433, followed.

F Suresh Chandra Bahari v. State of Bihar AIR, (1994) SC 2420, relied
on.

2. In a criminal case the onus lies on the prosecution to prove
affirmatively that the accused was directly and personally connected with the
G acts or omissions attributable to the crime committed by him. It is settled
position of law that act or action of one of the accused cannot be used as
evidence against other. However, an exception has been carved out under
Section 10 of the Evidence Act in the case of conspiracy. To attract the
applicability of Section 10 of the Evidence Act, the Court must have reasonable
ground to believe that two or more persons had conspired together for
H committing an offence. It is only then that the evidence of action or statement
SA.IU v. STATE OF KERALA 623
made by one of the accused could be used as evidence against the other. A
1628-C-DI

Kehar Singh & Ors. v. The State (Delhi Admn.), AIR (1988) SC 1883
followed.

3. There is no direct evidence either regarding abetment or the criminal B
conspiracy attributable to the appellant There is no positive evidence proving
or suggesting that the appellant was responsible for the pregnancy of the
deceased. In the absence of evidence regarding the circumstance attributing
the pregnancy of the deceased to the appellant and his insistence for abortion
of the child, the important circumstance of motive cannot be held to have been
proved. The courts below, therefore, were not justified in holding the existence C
of criminal conspiracy to commit the crime of murder of the deceased. In the
absence of any evidence suggesting the existence of a circumstance of
insistence by the appellant for abortion, an important link in the chain of
circumstances attributed against him is missing. Even otherwise motive by
itself cannot be a proof of conspiracy. (634-D, H; 635-A-BI D
Girija Shankar Misra v. State of V.P., AIR (1993) SC 2618, relied on.

4. It is true that a number of witnesses have deposed that they had seen
both the accused, appellant and accused No. I, together on the date of
occurrence but it is equally true that such meeting was not unusual as E
admittedly they were working together in the plantation and would usually
meet each other. The statement of the witnesses does not prove beyond doubt
that they were together near the road at the place of occurrence on the fateful
day. Mere meeting would by itself not be sufficient to infer the existence of a
criminal conspiracy. There is no suggestion, much less legal evidence to the
effect that both the accused were so intimate which would have compelled F
· Accused No. 1 to agree to be a conspirator for the killing of the deceased at
the instance of the appellant. Accused No. 1 is also not stated to be a habitual
criminal. There is no suggestion of accused No. 1 being hired for the purpose
of killing the deceased. (635-DI

5. In the absence of the existence of circumstances suggesting the
G
hatching of criminal conspiracy, the appellant could not have been convicted
and sentenced with the aid of Section 1208 or Section 109 IPC. To prove the
charge of abetment, the prosecution is required to prove that the abettor had
instigated for the doing of a particular thing or engaged with one or more
other person or persons in any conspiracy for the doing of that thing or H
624 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A intentionally aided by an act of illegal omission, doing of that thing. The
· prosecution miserably failed to prove the existence of any of the ingredients
of Section 107 IPC. The Prosecution did not prove the charge of conspiracy
against the appellant beyond all reasonable doubt. Thus, the appellant is
entitled to the benefit of reasonable doubt. 1636-H; 637-A-B)

B 6. The prosecution had alleged that accused No. 1 had committed the
crime of murder by stabbing the deceased with his knife. Merely because
the chsrge of conspiracy fails against tl'le appellant, it cannot be said that the
conyiction and sentence awarded to accused No. 1 was illegal. 1637-C)

Babu Singh v. State of Punjab, JT (1996) 9 SC 75311996) 8 SCC 699,
C relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 699
of 1998. ·

From the Judgment and Order dated 11.4.97 of the Kerala High Court
D in Crl. A.No. 837 of 1994.

K.V. Sreekumar for the Appellant.

G. Prakash, Jyothish A.P. and Ms. Beena Prakash for the Respondent.

E The Judgment of the Court was delivered by

SETHI, J. Ms. Jameela a young muslim woman was found killed on
18.9.1991 by Biju, allegedly hired killer at Vattolikadavu road after having
received stab injuries. PWI, the elder brother of the deceased lodged the First
Information Report in Police Station Ayyuampuzha without naming any person
F as accused. At the time of her death, the deceas~d was in advance stage of
pregnancy. Accused No.I, namely, Biju was arrested on 19.9.1991. The lungi
and shirt MOs 12 and 13 respectively worn by him at the time of crime were
seized as per Mahazar (Pl6). After recording his disclosure statement MOI,
the weapon of offence was recovered from the bushes where he had allegedly
G hidden it. Accused No.2 was also arrested in connection with the murder of
Ms. Jameela after three days of the occurrence.

Upon trial both the accused were found guilty of the offences punishable
under Sections I 208 and 302 besides Section I 09 of the Indian Penal Code.
They were sentenced to undergo life imprisonment. The appellant was also
H imposed a fine of Rs. I 0,000 and in case of default, directed to undergo
SAJU v. STATE OF KERALA [SETHI, J.] 625
rigorous imprisonment for two years. Aggrieved by the judgment of the A
Sessions Court, both the ace.used persons filed appeal before the High Court
which was dismissed on I .4. I 997 vide the judgment impugned in this appeal.

This Court on 14.7.1998 dismissed the SLP in so far as it related to
Accused No. I, namely, Biju and granted leave only with respect to the
appellant Saju. B

The case of the prosecution is that Jameela, a young unmarried woman
of 24 years of age had developed illicit relations with the appellant, with the
result that she became pregnant. She insisted that the appellant should marry
her but her request was declined on the ground that the marriage was not C
possible because Jameela and the appellant belonged to different religions.
The appellant is stated to have quarrelled with the deceased for which Jameela
filed a complaint against him at Police Station Ayyuampuzha. Jameela did not
accede to the advise of the appellant to have abortion. On the date of
occurrence she is stated to have gone to the hospital at about 11 a.m. for a
check up and on her way back she visited her sister Amina (PW9) at about D
2.30 p.m. After she left the residence of her sister she was fatally stabbed by
Accused No. I, Biju who had followed her from the bus stop where she had
alighted from the bus. After inflicting the stab injuries the said accused left
the place of occurrence. The offence was alleged to have been committed by
Accused No. I in conspiracy with Accused No.2 who wanted to get rid of the E
deceased.

Admittedly there is no eye-witness in the case which the prosecution
has sought to prove by leading circumstantial evidence. The Trial Court
summed up the circumstances as under:
F
"(I) Jameela and the second accused who were residents of the
Kalady Plantation Estate engaged themselves in love affair and had
quarrelled when the former disclosed that she was pregnant and she
also disclosed about her pregnancy to her mother (PW6) and other
close relations like PW9 and 18.
G
(2) Jameela requested 2nd accused to marry her and that was turned
down by second accused because they belonged to different religions.

(3) When the close relatives of Jameela persuaded second accused to
marry Jameela since she became pregnant through him, second accused
proclaimed that she would not allow Jameela to deliver the child. H
626 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A Second accused manhandled Jameela in connection with this dispute
and that was seen by her neighbours and there was also involvement
of the police.

(4) The conduct of the accused on the fateful day (both accused were
seen together on the date of occurrence by several persons and from
B PW. 11 's tea shop they had taken food.

(5) A I was seen washing his face and hands at the thodu near to the
place of occurrence by PW 6 at about the time of occurrence and
dress worn by him on that date have been recovered and identified
as MOs 12 and 13.
c (6) First accused was seen at about 3 p.m. on the date of occurrence
while he was going through Kappelappalli by persons like PW 17.

(7) Recovery of MO I as a result of information given by first accused
from the bushes where it was hidden and very near to the place of
occurrence.
D
(8) Recovery of MO 25 footwears (Hawai Chappals) from the place of
occurrence and identified as similar to the one purchased by first
accused from the shop of PW 14 few days prior to the date of
occurrence.

E (9) Immediately after the incident the accused were absconding and
arrest of first accused on 19 .9 .1991 by PW 22 from the place he was
hiding."

According to the prosecution the injuries found on the person of the
deceased were caused by Accused No. I, Biju with the weapon of offence
F seized in the case at his instance consequent upon his disclosure statement.
His conviction and sentence has already been upheld by this Court while
dismissing the SLP filed by him. The appellant has been found guilty and
convicted of offences under Section 302 read with Section 1208 and Section
109 of the IPC. It may be reiterated that there is no direct evidence either
G regarding abetment or the criminal conspiracy attributable to the appellant.
Both the offences are held to be proved on the basis of circumstantial
evidence.

To prove the charge of criminal conspiracy the prosecution is required
to establish that two or more persons had agreed to do or caused to be done,
H an illegal act or an act which is not illegal, by illegal means. It is immaterial
SAJU v. STATE OF KERALA [SETHI, J.] 627

whether the illegal act is the ultimate object of such crime or is merely A
incidental to that object. To attract the applicability of Section 1208 it has to
be proved that all the accused had the intention and they had agreed to

- commit the crime~ There is no doubt that conspiracy is hatched in private and
in secrecy for whic~ direct evidence would rarely be available. It is also not
necessary that eac~ member to a conspiracy must know all the details of the
1

conspiracy. This C~urt in Yash Pal Mittal v. State of Punjab, AIR (1977) SC B
2433 held:
"The offence of criminal conspiracy under S. I 20A is a distinct offence
introduced for the first time in 19 I 3 in Ch apt. V-A of the Penal Code.
The very agreement, concert or league is the ingredient of the offence.
It is not necessary that all the conspirators must know each and every C
detail of the conspiracy as long as they are co-conspirators 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 D
be aware and in which each one of them must be interested. 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 and purported E
to be in furtherance of the object of the conspiracy even though there
may be sometimes mis-fire or over-shooting by some of the
conspirators. Even if some steps are resorted to by one or two of the
conspirators without the knowledge of the others it will not affect the
culpability of those others when they are associated with the object F
of the conspiracy. The significance of criminal conspiracy under S.120A
is brought out pilthily by this Court in EG Barsay v. The State of
Bombay, [1962] 2 SCR 195 at p.229 thus:
"The gist of the offence is· an agreement to break the law. The
parties to such an agreement will be guilty of criminal conspiracy, G
though the illegal act agreed to be done has not been done. So
too, it is not an ingredient of the offence that all the parties
should agree to do a single illegal act. It may comprise the
commission of a number of acts. Under S.43 of the Indian Penal
Code, an act would be illegal if it is an offence or if it is prohibited
by law. Under the first charge the accused are charged with H
628 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A having conspired to do three categories of illegal acts, and the
mere fact that all of them could not be ci>nvicted separately in
respect of each of the offences has no relevancy in consid~ring
the question whether the offence of conspiracy has been
committed. They are a.II guilty of the offence of conspiracy to do
illegal acts, though for individual offences all of them may be
B liable".

We are in respectful agreement with the above observations with
regard to the offence of criminal conspiracy."

In a criminal case the onus lies on the prosecution to prove affirmatively
C that the accused was directly and personally connected with the acts or
omissions attributable to the crime committed by him. It is settled position of
law that act or action of one of the accused cannot be used as evidence
against other. However, an exception has been carved out under Section 10
of the Evidence Act in the case of conspiracy. To attract the applicability of
D Section 10 of the Evidence Act, the Court must have reasonable ground to
believe that two or more persons had conspired together for committing an
offence. It is only then that the evidence of action or statement made by one
of the accused could be used as evidence against the other. This Court in
Kehar Singh & Ors. v. The State (Delhi Admn.) AIR (1988) SC 1883 has held:

E "Section 120A provides for the definition of criminal conspiracy and
it speaks qf that when two or more persons agree to do or cause to
be done an act which is an illegal act and S.120-B provides for the
punishment for a criminal conspiracy and it is interesting to note that
in order to prove a conspiracy it has always been felt that it was not
easy to get direct evidence. It appears that considering this experience
F about the proof of conspiracy that S. l 0 of the Indian Evidence Act
was enacted. Section l 0 reads:

"Things said or done by conspirator in reference to common
design-when there is reasonable ground to believe that two or
more persons have conspired together to commit an offence or
G an actionable wrong, anything said, done or written by any one
of such persons in refere.nce to their common intention, after the
time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed
to be so qmspiring, as well for the purpose of proving the
H existence of the conspiracy as for the purpose of showing that
SAJU v. STATE OF KERALA [SETHI, J.] 629
any such person was a party to it." A
This section mainly could be divided into two: the first part talks of
where there is reasonable ground to believe that two or more persons
·have conspired to commit an offence or an actionable wrong, and it
is only when this condition precedent is satisfied that the subsequent
part of the section comes into operation and it is material to note that · B
this part of the Section talks of reasonable grounds to believe that
two or more persons have conspired together and this evidently has
reference to S.120-A where it is provided "When two or more persons
agree to do, or cause to be done". This further has been safeguarded
by providing a proviso that no agreement except an agreement to
commit an offence shall amount to criminal conspiracy. It will be, C
therefore, necessary that a prima facie case of conspiracy has to be
established for application of S. l 0. The second part of Section talks
of anything said, done or written by any one of such persons in
reference to the common intention after the time when such intention
was first entertained by any one of them is relevant fact against each D
of the persons believed to be so conspiring as well for the purpose
for proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it. It is clear that this
second part permits the use of evidence which otherwise could not
be used against the accused person. It is well settled that act or action
of one of the accused could not be used as evidence against the E
other. But an exception has been carved out in S. l 0 in cases of
conspiracy. The second part operates only when the first part of the
section is clearly established i.e. there must be reasonable ground to
believe that two or more persons have conspired together in the light
of the language of S.120A. It is only then the evidence of action or F
statements made by one of the accused, could be used as evidence
against the other. In Sardar Sardul Singh Caveeshar v. State of
Maharashtra, [1964] 2 SCR 378, Subba Rao, J. (as he then was)
analysed the provision of S. l 0 and made the following observations:
"This section, as the opening words indicate will come into play G
when the court is satisfied that there is reasonable ground to
believe that two or more persons have conspired together to
commit an offence or an actionable wrong, that is to say, there
should be a prima facie evidence that a person was a party to
the conspiracy before his acts can be used against his co-
conspirators. Once such a reasonable ground exists, anything H
630 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A said, done or written by one of the conspirators in reference to
the common intention, after the said intention was entertained, is
relevant against the others, not only for the purpose of proving
the existence of the conspiracy but also for proving that the
other person was a party to it. The evidentiary value of the said
acts is limited by two circumstances, namely, that the acts shall
B have reference to their common intention and in respect of a
period after such intention was entertained by any one of them.
The expression in reference to their common intention is very
comprehensive and it appears to have been designedly used to
give it a wider scope than the words "in furtherance of' in the
c 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. Another important limitation implicit in the language
is indicated by the expressed scope of its relevancy. Anything
so said, done or written is a relevant fact only 'as against each
D of the person believed to be so conspiring as well for the purpose
of proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it'. It can be used
only for the purpose of proving the existence of the conspiracy
or that the other person was a party to it. It cannot be said in
E favour of the other party or for the purpose of showing that such
a person was not a party to the conspir11cy. In short, the Section
can be analysed as follows: (I) There shall be a prima facie
evidence affording a reasonable ground f<_>r 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
F one of them in reference to their common intention will be evidence
against the other; (3) anything said, done or written by him
should have been said, done or written by him after the intention
was formed by any one of them; (4) it would also be relevant for
the said purpose against another who entered the conspiracy
G whether it was said, done or written before he entered the
conspiracy or after he left it; (5) it can only be used against a co-
conspirator. and not in his favour."

It was further held:

H "From an analysis of the section, it will be seen that Sec. I 0 will come
SAJU v. ST ATE OF KERALA [SETHI, J.] 631
into play only when the Court is satisfied that there is reasonable A
ground to believe that two or more persons have conspired together
to commit an offence. There should be, in other words, a prima facie
evidence that the person was a party to the conspiracy before his acts
.... can be used against his co-conspirator. One such primafacie evidence
exists, anything said, done or written by one of the conspirators in
reference to the common intention, after the said intention was first B
entertained, is relevant against the others. It is relevant not only for
the purpose of proving the existence of conspiracy, but also for
proving that the other person was a party to it. It is true that the
observations of Subba Rao, J. in Sardul Singh Caveeshar v. State of
Maharashtra, [ 1964] 2 SCR 3 78 lend support to the contention that c
the admissibility of evidence as between co-conspirators would be
liberal than in English Law. The learned Judge said (at 390):

"The evidentiary value of the said acts is limited by two
circumstaf!ces, namely, that the acts shall be in reference to their
common intention and in respect of a period after such intention D
was entertained by any one of them. The expression "in reference
to their common intention" is very comprehensive and it appears
to have been designedly used to give it a wider scope than the
_;
words "in furtherance of" in 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 E
the field of conspiracy or after he left it.. .. "

But, with respect, the above observations that the words of Sec. I 0
have been designedly used to give a wider scope than the concept
of conspiracy in English Law, may not be accurate. This particular
aspect of the law has been considered by the Privy Council in Mirza
F
Akbar v. King Emperor, AIR (1940) PC 176 at p.180, where Lord
Wright said that there is no difference in principle in Indian Law in
view Sec. l 0 of the Evidence Act.

-- The decision of the Privy Council in Mirza Akbar's case has been G
referred to with approval in Sardul Singh Caveeshar v. State of
Bombay, [1958] SCR 161 at p.193: AIR (1957) SC 747 ATP. 760 where
Jagannadhadas, J., said:

"The limits of the admissibility of evidence in conspiracy case
under S. I 0 of the Evidence Act have been authoritatively laid H
632 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A . · down by the Privy Council in Mirza King v. King Emperor,
(supra). In that case, their Lordships of the Privy Council held
that S.10 of the Evidence Act must be construed in accordance
with the principle that the thing done, written or spoken was
·something done in carrying out the conspiracy and was receivable
as a step in the proof of the conspiracy. They notice that evidence
B receivable under S. l 0 of the Evidence Act of "anything said,
done or written, by any one of such persons" (i.e. conspirators)
must be "in reference to their common intention". But their
Lordships held that in the context (notwithstanding the amplitude
of the above phrase) the words therein are not capable of being
c widely construed having regard to the well- known principle
above enunciated."
In Suresh Chandra Bahri v. State of Bihar, AIR (1994) SC 2420 this
Court reiterated that the essential ingredient of criminal conspiracy is the
agreement to commit an offence. After referring to thejudgments in NMMY
D Momin v. State of Maharashtra, AIR ( 1971) SC 885 and State (Delhi Admn)
v. V.C. Shukla, AIR (1980) SC 1382 it was held in S.C. Bahri's case (Supra)
as under:
"A cursory look to the provisions contained in S.120-A reveal that a
criminal conspiracy envisages an agreement between two or more
persons to commit an illegal act or an act which by itself may not be
E
illegal but the same is done or executed by illegal means. Thus 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 prosecution
F because in such a fact situation criminal conspiracy is established by
proving such an agreement. In other words, where the conspiracy
alleged is with regard to commission of a serious crime of the nature
as contemplated in S.120-B read with the provislc to sub-sec.(2) of
S.120-A of the IPC, the~ in that event mere proof ·of an agreement
between the accused for commission of such a crime alone is enough
G
to bring about a conviction under S.120-B 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
H ingredient being an agreement between the conspirators to commit the
SAJU v. STATE OF KERALA [SETHI, J.] 633
crime and if these requirements-.ao<I' ingredients are established the act A
would fall within the trapping of the provisions contained in S.120-B
since from its very nature a conspiracy must be conceived and hatched
in complete secrecy, because otherwise the whole purpose may frustrate
and it is common experience and goes without saying that only in
very rare cases one may come across direct evidence of a criminal
conspiracy to commit any crime and in most of the cases it is only B
the circumstantial evidence which .is available from which an inference
giving rise to the conclusion of an agreement between two or more
persons to commit an offence may be legitimately drawn."

It has thus to be established that th1! accused charged with criminal C
conspiracy had agreed to pursue a course of conduct which he knew leading
to the commission \lf a crime by one or more persons to. the agreement, of
that offence. Besides the fact of agreement the necessary mens rea of the
crime is also required to be established.

In the instant case, the hatching of conspiracy between the accused D
persons has been sought to be proved on the ground that as the deceased
had declined to get the pregnancy aborted, the appellant wanted to get rid
,(.
of her, suggesting the existence of circumstance of motive. Another
circumstance relied upon by the ·prosecution is that both the accused were
seen together on the date of murder near or about the place of occurrence. E
Some conversation is also stated to have taken place between the accused
persons, the contents of which are neither disclosed nor suggested. Accused
No. I alone was found to have boarded the bus in which the deceased was
travelling and alighted from it along with her.

Regarding the circumstance relating to the existence of motive, PW9 F
who is the sister of Ms. Jameela deposed that the deceased had told her that
the pregnancy conceived by her was through the appellant. According to her
the appellant admitted the paternity of conceived child in the initial stage but
denied the paternity attributed to him six months thereafter. The trial court
found that "in the answers elicited in the further cross-examination also it G
would appear that her version about the first source of knowledge about the
pregnancy of Jamee la was inconsistent and unnatural". Dealing with her
statement, the trial court observed that PW9 had no occasion to meet Jameela
as she was not visiting her mother's house and also because the second
accused had consented for the marriage. The only evidence regarding the
appellant being responsible for the conception of the child is the testimony H
634 SUPREME COURT REPORTS (2000) SUPP. 4 S.C.R.

A of Nabeesa (PW6), the mother of the deceased. She had stated that she came
to know about the pregnancy of Jameela only when she tried to fix her
marriage with some person and Jameela told her that she was in love with the
appellant. It is not discerned from the testimony of PW6 that Jameela had
conceived the child from the appellant. What the witness stated was only that
B Jameela and the appellant were in love and they knew each other for a period
of two years before the death of Jameela. According to her the marriage
between the deceased and the appellant could not be solemnised as they
belonged to different religions. She never saw the deceased and the appellant
talking as according to her they used to talk only in her absence. The
appellant is stated to have visited the house of the aforesaid witness on
C 15.5.1991 and .assaulted the deceased regarding which report Exhibit P-4 was
lodged. According to her Jameela was killed while returning from the hospital
where she had gone for a check up. Nowhere in her testimony Nabeesa (PW6)
stated that the appellant wanted the child, conceived by Jameela, to be
aborted. There is no positive evidence proving or suggesting that the appellant
D was responsible for the pregnancy of the deceased. In the·absence of evidence
regarding the circumstance attributing the pregnancy of the deceased to the
appellant and his insistence for abortion of the child, the important circumstance
of motive cannot be held to have been proved. The trial court, therefore,
rightly did not rely upon the testimony of PW9 Amina with respect to the
existence of the said circumstance. The testimony of PW18 Meharban who
E is the sister-in-law of the deceased also does not inspire confidence to link
the appellant with the pregnancy of the deceased. PW2 who is the neighbour
of the deceased stated that she had known about the pregnancy from Jameela
herself. According to her the appellant had quarrelled with Jameela in
connection with the pregnanr,y. Despite denial of the appellant Jameela was
stated to have asserted that she did not have sexual intercourse with anyone
F other than the appellant. In her cross-examination the witnesses stated that
the appellant never threatened Jameela. She admitted that the appellant had
apparently told Jamee la that he was not the father of the child in her womb.
The witness conceded that she had no direct knowledge about the relationship
of the deceased with the appellant. PW3 who is a neighbour and husband of
G PW2 was declared hostile as he did not support the case of the prosecution.
It was deposed by him that he was not aware that Jameela had requested the
appellant to marry her. PW2 stated that the appellant had categorically stated
that he was not responsible for the pregnancy as someone-else was responsible
for it. The courts below, therefore, were not justified in holding this
circumstance proved for the existence of criminal conspiracy to commit the
H crime of murder of the deceased. In the absence of any evidence suggesting
SAJU v. STATE OF KERALA [SETHI, J.] 635
the existence of a circumstance of insistence by the appellant for abortion, A
an important link in the chain of circumstances attributed against him is
missing. Even otherwise motive by itself cannot be a proof of conspiracy. In
Girja Shank.ar Misra v. State of UP., AIR (I993) SC 2618 though it was found
that there were serious misunderstanding between the deceased and the
appellant because of the illicit relationship between the appellant and the wife B
of the deceased, yet the Court held that despite the fact that the appellant
had a motive, he could not be held responsible for hatching a conspiracy.

The other important circumstance relied by the prosecution and believed
both by the trial and the High Court is the presence of the appellant in the

- company of Accused No. I near or about the place of occurrence on the date
of incident. It is true that a number of witnesses have deposed that they had
seen both the accused together on the date of occurrence but it is equally
true that such meeting was not unusual as admittedly they were working
C

together in the plantation. Mere meeting would by itself not be sufficient to
infer the existence of a criminal conspiracy. There is no suggestion, much less
legal evidence to the effect that both the accused were so intimate which D
would have compelled Accused No. I to agree to be a conspirator for the
killing of the deceased at the instance of the appellant. The Accused No. I'
is also not stated to be a habitual criminal. There is no suggestion of the
accused No. I being hired for the purpose of killing the deceased.
E
Ramakrishnan (PW3) did not support the case of the prosecution of
having seen both the accused sitting and talking to each other near the
bushes on the day of occurrence. To a specific question as to whether he had
seen any other person going through the road towards the side where Accused
No. I had gone, the witness emphatically replied in the negative. Davis (PW5)
stated that on the date of occurrence he had seen Accused No. I at about 2'0 F
clock in the afternoon. In reply to a question as to whether he had seen
anyone-else geing through the road while Accused No.2 was talking to PW4~
the witness replied "I have not noticed". Nabeesa (PW6) who is the mother
of the deceased has stated that on the date of occurrence both the accused
were sitting near her house on some timber logs at about 2 p.m. but at 2.45 G
p.m. she saw only Accused No. I washing his knife near the stream which is
on the southern side of her house. What happened between 2.00 p.m. to 2.45
p.m. is not known to the witness. Her deposition is mainly with respect to the
relationship of the deceased with the appellant. Jose (PW7) stated in the trial
court that on the date of occurrenc~ at about 2.45 p.m., the appellant had
called him. He told him to come after some time He went there and talked to H
636 SUPREME COURT REPORTS (2000) SUPP. 4 S.C.R.

A the appellant, George (PW8) and Mohan an (PW 10). He saw Jarrieela, deceased
getting down from the bus at about 2.30 p.m. She had gone to the house of
her sister Amina (PW9). He did not see Accused No. I with Accused No.2.
He saw only the appellant, PW8, PWIO and some other people. George PW8
stated that he saw appellant on the date of occurrence at about 2.30 p.m. at
B the gate of his house. Both the witness and the appellant had conversation
on the steps of the house of the witness. Appellant was there for about half
an hour. This statement of PW8 belies the averments of other witnesses that
the appellant committed the crime in conspiracy with Accused No. I at about
2.45 p.m. Amina (PW9), the sister of the deceased stated that she had seen
both the accused together sitting on the timber log near the road. She did not
C see appellant accompanying the accused No. I thereafter. Devasi (PW I I)
Stated that on the day of occurrence both the accused had come to his shop·
at about I p.m. and each had one plate tapioca and meat. Meharban (PWI 8)
stated "I saw Accused No.2 at 2.30 p.m. at the timber log. I did not see
accused No. I. I saw A-2 calling PW-7 Jose. Then I saw he was talking with
PW-8 George. That was about 2.45 in the afternoon. I saw A- I following
D Jameela when she alighted the bus. Then I saw A- I swiftly walking from
eastern side to western side". This statement of the prosecution witness does
not suggest, even by implication that both the accused were together on the
day of occurrence. The statement of the witnesses noticed hereinabove may
probabilise the presence of both the accused together but does not prove
E beyond doubt that they were together near the road at the place of occurrence
on the fateful day. Assuming they were together, would not necessarily lead
to the conclusion that they had met in furtherance of the conspiracy to
murder the deceased. We are of the opinion that the prosecution did not
succeed in proving this circumstance beyond reasonable doubt. Conviction
of the appellant on the basis of the existence of the alleged circumstance
F cannot be justified. The appellant is entitled to the benefit of the reasonable
doubt. The High Court was, therefore, not justified to hold that the accused
persons had been seen together before and after the incident when Jameela
boarded the bus for the Hospital and alighted at the bus stop around 2.30
p.m. The High Court was also not justified to hold that there was no particular
G reason for them to be together except as stated by the prosecution. It has
come in the prosecution evidence that the witnesses and the a~cused were
plantation workers and would usually meet each other.

In the absence of the existence of circumstances suggesting the hatching
of criminal conspiracy, we are of the opinion' that the appellant could not have
H been convicted and sentenced with the· aid of Section 1208 or Section \ 09
SAJU v. STATE OF KERALA [SETHI, J.] 637

IPC. No fact or circumstance with respect to the abetment attracting the A
applicability of Section l 09 IPC has been brought to our notice. To prove the
charge of abetment, the prosecution is required to prove that the abettor had
instigated for the doing of a particular thing or engaged with one or more
.._ "' other person or persons in any conspiracy for the doing of that thing or
intentionally aided by an act of illegal omission, doing of that thing. The
prosecution miserably failed to prove the existence of any of the ingredients B
of Section l 07 IP€.

Learned counsel appearing for the respondent-State submitted that
after the dismissal of the appeal of Accused No. I, the charge of conspiracy
against the appellant should be deemed proved. We are not impressed with C
such a submission particularly when the prosecution had alleged that the said
accused had committed the crime of murder by stabbing the deceased with
his knife. Merely because the charge of conspiracy fails against the appellant,
it cannot be said that the conviction and sentence awarded to the Accused
No. I was illegal. This Court in Babu Singh v. State of Punjab, JT (1996) 9 SC
753 held that in a case where two accused were alleged to have conspired D
and killed their younger brother, the acquittal of one would not entitle the
other accused to be acquitted. The Court observed:

"Consequently, it was held that the prosecution failed to establish the
charge of conspiracy. But merely because the charge of conspiracy
failed, the prosecution case so far as the actual assault being given E
by appellant Babu Singh cannot be ipso facto thrown away."

In view of what has been held hereinabove, we are inclined to hold that
the prosecution did not prove the charge of conspiracy against the appellant
beyond all reasonable doubt. We are of the opinion that the appellant is F
entitled to the benefit of reasonable doubt existing in the case. The appeal
is accordingly allowed and the impugned judgment of the trial as well as of
the High Court, in so far as it relates to the appellant, is set aside and the
appellant is acquitted of the charges for w.hich he was convicted and sentenced.
_- The appellant shall be set at liberty forthwith unless required in some other
case. G
A.K.T. Appeal allowed.