Supreme Court of India
YOGESH @ SACHIN JAGDISH JOSHIversusSTATE OF MAHARASHTRA
- Citation
- 2008 INSC 534
- Decided
- 28 April 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
On the facts, there was no sufficient ground to proceed against the appellant, and he was discharged under Section 227 CrPC.
Summary
The appellant, a minor at the time, was alleged to have conspired with his family members, an employee and a friend to murder Kunal Parihar, the complainant's son, based largely on threatening phone calls and a motive of a disputed marriage. The prosecution charged the appellant and fifteen others under Sections 302, 120A, 120B and 1208 IPC. While several co‑accused were discharged by the High Court and the Sessions Judge on the ground that the material did not establish a criminal conspiracy, the appellant’s applications for discharge under Section 227 CrPC were repeatedly rejected, leading to appeals. The Supreme Court examined the scope of Section 227 CrPC, the requirement of a prima facie case, and the evidentiary standards for inferring conspiracy from circumstantial evidence. It held that the evidence, even if taken in its entirety, created only a suspicion of motive and not a reasonable possibility of conviction, and that the discharge of the co‑accused indicated no sufficient ground to proceed against the appellant. Consequently, the appellant was discharged and the appeals were allowed.
Issues considered
- Whether a trial court may discharge an accused under Section 227 CrPC when the material on record does not make a conviction reasonably possible.
- Whether the circumstantial evidence (threatening calls and alleged motive) is sufficient to infer a criminal conspiracy under Sections 120A, 120B and 1208 IPC.
- Whether the principle of parity applies, i.e., the appellant is entitled to discharge because co‑accused have been discharged.
- Scope and ambit of the trial court's power under Section 227 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 227
- Indian Penal Code, 1860s. 1208, s. 120A, s. 120B, s. 302
Subjects
criminal conspiracydischarge under s.227 CrPCprima facie casecircumstantial evidencemurderIPC 302IPC 120AIPC 120Bparity principle
Judgment
[2008] 6 S.C.R 1116
A YOGESH @ SACHIN JAGDISH JOSHI
v
STATE OF MAHARASHTRA
(Criminal Appeal Nos.744 of 2008)
APRIL 28, 2008
B
[S.B. SINHA AND D.K. JAIN, JJ.]
Penal Code, 1860- ss. 302 rlw 1208 - Murder- Criminal
conspiracy-Allegation that Appellant and his family members,
c one of their employees and a friend hatched a criminal
conspiracy to murder complainant's son as he was to get
married to another girl after an affair and alleged marriage
with Appellant's sister - Case based on circumstantial
evidence, namely, threatening calls from the side of accused
to complainant, his family and earlier relationship between the
0
deceased and Appellant's sister - Prayer of Appellant for
discharge - Tenability of - Held: On facts, tenable - Mother
and sister of the appellant along with two other accused having
been discharged by High Court and SLP preferred by State
E against the same having been dismissed, and, similarly, father
of appellant, stated to be the mastermind behind the entire
conspiracy, having been discharged by Sessions Judge, on
same set of circumstances and accusations, no sufficient
ground survived to proceed against the Appellant - Code of
Criminal Procedure, 1973 - s.227.
F
Code of Criminal Procedure, 1973 - s.227 - Powers
under, of Trial Court - Scope and ambit of - Discussed.
Penal Code, 1860 - ss. 120A and 1208 - Offence of
criminal conspiracy -Essential features of - Discussed.
G
According to the prosecution, Appellant and his
family members, one of their employees and a friend
hatched a criminal conspiracy to murder the ,~ .
complainant's son as he was to get married to another
H 1116
YOGESH @ SACHIN JAGDISH JOSHI v. STATE OF 1117
.... MAHARASHTRA
'
girl after an affair and alleged marriage with Appellant's A
sister. It is alleged that in pursuance of such conspiracy
the complainant' son was done to death. The case of the
prosecution was based on the circumstantial evidence,
namely, threatening calls from the side of the accused to
the complainant, his family and the earlier relationship B
between the deceased and Appellant's sister.
Charge-sheet was filed against the appellant before
the Juvenile Court, he being below 18 years of age, and
against fifteen other persons, which included his father
(A-1 ), mother (A-2), sister (A-4), a family friend (A-11) and c
manager of his father (A-12). Appellant and accused A-1,
A-2, A-4 to A-6, A-11 and A-12 were prosecuted for offences
under s.302 and 120B, IPC whereas A-7 to A-10 and A-13
to A-16, were prosecuted for offences under s.302 read
with s.120B and under the Arms Act. D
" Appellant filed application for discharge before the
Juvenile Justice Board, under s.227,. CrPC. The
application was rejected. Being aggrieved, Appellant
preferred appeal before the Sessions Judge, but the same
was dismissed. Thereafter, Appellant moved revision E
application before High Court which too was dismissed.
A-2, A-4, A-11 and A-12 had also moved applications
under s.227, CrPC before the Sessions Judge for
discharge, which were dismissed. They filed writ petitions F
which were allowed by High Court and all the said four
accused were accordingly discharged. Appellant filed writ
Petition under Art. 227 of the Constitution r/w s.482 CrPC
pleading that by reason of parity, he was also entitled to
be discharged. That petition was dismissed.
G
Subsequently, Special Leave Petition, preferred by
~ the State against order of the High Court discharging
accused Nos.2: 4, 11 & 12, was dismissed and A-1, father
of the appellant, filed an application before the Sessions
Judge for discharge from all the charges, which was H
1118 SUPREME COURT REPORTS [2008] 6 S.C.R.
A allowed.
The question which arose for consideration in the
present appeal is whether in the facts and circumstances
of the case there was no sufficient ground to proceed
against the appellant for the offences alleged and he was
8 entitled to be discharged.
Allowing the appeals, the Court
HELD: 1.1. S.227, Cr PC contemplates the
circumstances whereunder there could be a discharge
C of an accused at a stage anterior in point of time to framing
of charge under s.228. It provides that upon consideration
of the record of the case, the documents submitted with
the police report and after hearing the accused and the
prosecution, the Court is expected, nay bound to decide
D whether there is "sufficient ground" to proceed against
~·
the accused and as a consequence thereof either '
discharge the accused or proceed to frame charge against
him. [Para 14] [1126-D, E, FJ
1.2. The words "not sufficient ground for proceeding
E against the accused" appearing in the Section postulate
exercise of judicial mind on the part of the Judge to the
facts of the case in order to determine whether a case for
trial has been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift and
F weigh the material for the limited purpose of finding out
whether or not a prima facie case against the accused
has been made out. The test to determine a prima facie
case depends upon the facts of each case and in this
regard it is neither feasible nor desirable to lay down a
G rule of universal application. By and large, however, if two
views are equally possible and the Judge is satisfied that
the evidence produced before him gives rise to suspicion .o-
only as distinguished from grave suspicion, he will be fully
within his right to discharge the accused. At this stage,
H he is net to see as to whether the trial will end in conviction
YOGESH@ SACHIN JAGDISH JOSHI v. STATE OF . 1119
MAHARASHTRA
or not. The broad test to be applied is whether the A
materials on record, if unrebutted, makes a conviction
reasonably possible. [Paras 15] [1126-F, G; 1127-A, B]
State of Bihar v. Ramesh Singh (1977) 4 sec 39 and
Union of India v. Prafulla Kumar Sama/ & Anr. (1979) 3 SCC
4 - relied on. B
2.1 5.120A of IPC defines criminal conspiracy. S.1208
of l.P.C. provides for punishment for an offence of criminal
conspiracy. The basic ingredients of the offence of
criminal conspiracy are: (i) an agreement between two or c
more persons; (ii) the agreement must relate to doing or
causing to be done either (a) an illegal act; or (b) an act
which is not illegal in itself but is done by illegal means.
Therefore, meeting of minds of two or more persons for
doing or causing to be done an illegal act or an act by
0
illegal means is sine qua non of criminal conspiracy. A
conspiracy is always hatched in secrecy and it is
impossible to adduce direct evidence of the common
intention of the conspirators. Therefore, the meeting of
minds of the conspirators can be inferred from the
circumstances proved by the prosecution, if such E
inference is possible. [Paras 17,18] [1127-E; 1128-A-D]
2.2. It is manifest that the meeting of minds of two or
more persons for doing an illegal act or an act by illegal
means is sine qua non of the criminal conspiracy but it F
may not be possible to prove the agreement between
them by direct proof. Nevertheless, existence of the
conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the
accused. But the incriminating circumstances must form G
a chain of events from which a conclusion about the
guilt of the accused could be drawn. An offence of
conspiracy is a substantive offence and renders the mere
agreement to commit an offence punishable even if an
offence does not take place pursuant to the illegal
H
1120 SUPREME COURT REPORTS [2008] 6 S.C.R.
A agreement. [Para 23] [1130-A, B, C] ... ,
Shivnarayan Laxminarayan Joshi & Ors. v. State of
Maharashtra (1980) 2 SCC 465; Mohammad Usman
Mohammad Hussain Maniyar & Ors. v. State of Maharashtra
(1981) 2 SCC 443;Kehar Singh & Ors. v. State (Delhi
B Administration) (1988) 3 SCC 609; State of Maharashtra &
Ors. v. Som Nath Thapa & Ors. (1996) 4 SCC 659; State (NCT
of Delhi) v. Navjot Sandhu @Afsan Guru (2005) 11 SCC 600
and State Through Superintendent of Police, CBI/SIT v. Nalini
& Ors. (1999) 5 SCC 253 - relied on.
c
3.1. From the material on record, it is manifestly clear
that it was the family members of the appellant, one of
their employees and a friend who allegedly had all entered
into an agreement to eliminate the deceased. However,
accused A-1, A-2, A-4, A-11 and A-12 already stand
D
discharged from the charges framed against them under
Sections 1208 and 302 l.P.C vide orders passed by the
High Court and the Sessions Judge. While discharging
the said accused, both the Courts have come to the
conclusion that there is no material on record to show
E that they had hatched a conspiracy to commit murde.r of
the deceased. Thus, the stand of the prosecution to the
effect that the parents, sister and friends of the appellants
had entered into a criminal conspiracy stands rejected
by virtue of the said orders of discharge. Furthermore,
F the High Court while discharging appellant's mother, sister
and two close associates, accused Nos.2, 4, 11 and 12
had opined that the circumstances, relied upon by the
prosecution, even if accepted in its entirety, only create a
suspicion of motive, which is not sufficient to bring home
G an offence of murder. The State's petition for special leave
against the said judgment has already been dismissed.
[Para 25] [1132-A-E]
3.2. In the light of the subsequent events, namely, the .. ~
orders of the High Court discharging appellant's mother,
H
YOGESH@ SACHIN JAGDISH JOSHI v. STATE OF 1121
MAHARASHTRA [D.K. JAIN, J.]
sister and two close associates, accused Nos.2, 4, 11 and A
12 respectively; order passed by this Court dismissing
the Special Leave Petition preferred by the State against
the said order and order passed by the Sessions Judge
discharging A-1, father of the appellant, stated to be the
mastermind behind the entire conspiracy, for offences B
under ss.1208 and 302 l.P.C., on same set of
circumstances and accusations, no sufficient ground
survives to proceed against the appellant for the
aforementioned offences. For the reasons aforesaid, the
Appellant is discharged from the charges levelled against C
him in the charge-sheet. [Paras 26, 27] [1132-F, G; 1133-A, B)
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 744 of 2008
From the final Judgment and Order dated 23.06.2006 of
0
the High Court of Judicature at Bombay in Criminal Revision
Application No. 288 of 2005.
WITH
Criminal Appeal No. 745 of 2008.
E
Ravi Shankar Prasad, R. Ayyam Peru ma I for the Appellant.
Ravindra Keshavrao Adsure for the Respondent.
The Judgment of the Court was delivered by
D.K. JAIN, J. 1. Leave granted. F
2. These two appeals are directed against orders dated
23rd June, 2006 and 19th September, 2006 passed by the High
Court of Judicature at Bombay in Criminal Revision Application
No. 288 of 2005 and in Criminal Writ Petition No.1884 of 2006 G
respectively. By the first order, the High Court has repelled the
challenge made to order dated 23rd March, 2005, in Criminal
Appeal No.83 of 2004, whereby the Sessions Judge, Satara
had affirmed the order passed by the Juvenile Justice Board,
rejecting the application filed by the appellant under Section H
1122 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 227 of the Code of Criminal Procedure, 1973 (for short "the
Code") for discharge. By the latter order, another Single Judge
of the High Court has dismissed the writ petition preferred by
the appellant, seeking quashing of order dated 23rd March,
2005.
B 3. The facts giving rise to the present appeals lie in a narrow
compass and centre around a criminal conspiracy, allegedly
hatched by the family members of the appellant to murder the
deceased, Kuna!. The case of the prosecution as per the charge-
sheet is that in the month of March 1999, deceased Kuna!
C organised an entertainment show, sponsored by the father of
the appellant. During the event, the deceased was introduced
to the sister of the appellant, Hema. The acquaintance
blossomed into love between the two. Fearing that there may
be opposition to their close relationship from their family
D members, they eloped and got married on 29th May, 2000.
Appellant's father lodged a complaint alleging that the deceased
had kidnapped his daughter. The complainant, namely, the father
of the deceased, also reported the matter to the Pune Police.
4. Sometime in June, 2000, Kuna! contacted his father and
E informed him that he was at Gauhati with Hema. Thereupon,
the complainant and his wife brought Kuna! and Hema to
Mumbai. On persuasion by the complainant and his wife, Hema
agreed to return and stay with her parents and the marriage
between Kuna! and Hema is stated to have been annulled. In
F December, the complainant filed complaints with the S.P.,
Satara and the Additional Commissioner of Police, Pune against
the father of the appellant alleging that he had abused him over
the telephone. The complainant also alleged that even thereafter,
threatening calls were made by the appellant, his sister, Hema
G and father. However, the things seem to have settled down with
the intervention of the Advocate of the complainant.
5. Thereafter, Kuna! was engaged to another girl and the
wedding was scheduled for 30 1h November, 2001. On 21' 1April,
2001 , the deceased (Kuna!) left Panchgani (where he was living
... -
H with the parents) for Mahabaleshwar in his maruti car. At about
YOGESH @ SACHIN JAGDISH JOSHI v. STATE OF 1123
~ MAHARASHTRA [D.K. JAIN, J.]
8:30 p.m., a taxi-driver informed the complainant that Kunal was A
lying in a pool of blood on Mahabaleshwarroad. The complainant
rushed to the spot and took his son in an injured condition to the
hospital where he was declared brought dead. The complainant
lodged an F.l .R at Mahabaleshwar Police Station against
unknown persons and an offence was registered under Section B
+ 302 of the IPC. However, on the next day, the complainant
levelled allegation that since marriage of Kunal had been fixed
with another girl, the appellant and his family members had
developed a grudge and had, therefore, hatched a conspiracy
with co-accused Umesh, Suresh, Bhavarlal Sharma, Captain c
Sharma to murder Kunal.
6. On completion of investigation, charge-sheet was filed
against the appellant before the Juvenile Court, Satara, being
below 18 years of age, and against fifteen other persons, which
included his father (A-1 ), mother (A-2), sister (A-4), a family friend D
(A-11 ), manager of his father (A-12), in Sessions Court, Satara.
All of them have been arraigned as members to the conspiracy
to murder Kunal. The appellant, herein, and accused A-1, A-2,
A-4 to A-7, A-11 and A-12 have been prosecuted for offences
under Section 302 and 120B of the Indian Penal Code, 1860 E
(for short "the l.P.C."), whereas accused A-7 to A-10 and A-13
to A-16 have been prosecuted for offences under Section 302
read with Section 120B and under the Arms Act.
7. The appellant filed an application for discharge before
i the Juvenile Justice Board, under Section 227 of the Code. The F
Juvenile Justice Board by order dated 151 October, 2004,
rejected the said application. Being aggrieved by the said order,
the appellant preferred a criminal appeal before the Sessions
Judge, Satara. As noted above, the said appeal was dismissed
vide order dated 23rd March, 2005. Still aggrieved, the appellant G
moved a revision application before the High Court. Vide order
){
dated 23rd June, 2006, the High Court dismissed the criminal
revision.
8. It appears that the mother (A-2), sister (A-4), a family
H
1124 SUPREME COURT REPORTS [2008] 6 S.C.R.
A friend (A-11) and the manager of appellant's father (A-12) had
also moved applications under Section 227 of the Code before
the Sessions Judge, Satara for discharge, which were
dismissed by virtue of orders dated 15th January, 2006 and 7th
October, 2003. Both these orders were challenged by them by
B means of two Criminal Writ Petitions (Nos.1283 and 1284 of
2006). Both the petitions were allowed by the then Chief Justice
of the High Court vide a common order dated 7th July, 2006.
lnter-alia, observing that the circumstances highlighted by the
prosecution, even if accepted in entirety, only created a .
c suspicion of motive, these were not sufficient to make out a
case for conviction of the accused and some suspicion or motive
·--. cannot serve as a sufficient ground for framing of charge against
them. Accordingly, all the ·four accused/petitioners were
discharged.
D 9. Emboldened by the said order, on 4th August, 2006, the
appellant filed a Criminal Writ Petition (No.1884 of 2006) under
Article 227 of the Constitution read with Section 482 of the Code
for quashing of aforenoted order dated 23rd March, 2005,
passed by the Sessions Judge, Saiara and for discharge of
E the charges framed under Section 302 read with Section 120B
of the l.P.C. Expressing surprise over the fact that this petition
had been filed though the order impugned in the petition stood
confirmed on dismissal of criminal revision on 23rd June, 2006,
the learned Judge rejected the plea of the appellant that in the
F light of order dated 7th July, 2006, in the case of co-accused, by
reason of parity, he was also entitled to be discharged. lnter-
alia, observing that earlier order dated 23rd June, 2006 in the
case of the appellant, which was certainly relevant for deciding
the Criminal Writ Petitions No.1283 & 1284 of 2006, had not
G been noticed in order dated 7th July, 2006 (by the Chief Justice),
vide order dated 19th September, 2006, the learned Judge
dismissed the petition. As noted above, both the orders, dated )l
23rd June, 2006 and 19th September, 2006 are challenged in
these two appeals.
H 10. At this juncture, two other significant subsequent
YOGESH @ SACHIN JAGDISH JOSHI v. STATE OF 1125
> ~ MAHARASHTRA [D.K. JAIN, J.]
developments deserve to be noted. In the first place, a Special A
Leave Petition, preferred by the State against order of the High
Court dated 7th July, 2006, discharging accused Nos.2, 4, 11 &
12, was dismissed on 30th April, 2007. Secondly, relying on order
dated 7th July, 2006, the father (A-1) of the appellant, termed as
the main accused in the charge-sheet, filed an application before 8
f the Sessions Judge for discharge from all the charges. Taking
note of the said order passed by the High Court, and inter-a/ia,
observing that apart from the fact that the alleged threats are
vague and are inadequate to connect the said accused with the
crime, vide order dated 14th May, 2007, the Sessions Judge
came to the conclusion that there was absolutely no material on
c
the basis whereof a reasonable likelihood of the said accused
being convicted could be predicted. Accordingly, he has
discharged the said accused. Thus, as on date, the father (A-
1), the mother (A-2), the sister (A-4) of the appellant and his two
~ other associates (A-11 &A-12) stand discharged of the offences D
for which they were charged, namely, Sections 302 and 1208
of l.P.C.
11. Mr. Ravi Shanker Prasad, learned senior counsel
appearing for the appellant, submitted that in the charge-sheet
E
there is no overt act attributed to the appellant regarding actual
murder and the threats allegedly given by his family members
and friends to the family of the deceased are not sufficient to
infer a criminal conspiracy, particularly when, the disputes
between the two families had already been compromised much
prior to the incident. Learned counsel submitted that accepting F
the prosecution case as it is, there is absolutely no material on
record to frame a charge against the appellant for offences
under Sections 302 and Section 1208 of the l.P.C. It was also
urged that other members of the family, namely, the mother and
sister of the appellant along with two other accused having been G
discharged by the High Court and similarly the father of the
)(
' appellant having been discharged by the Sessions Judge, there
was no sufficient ground to proceed against the appellant for
the said offences. In support of the proposition that a mere
suspicion is not sufficient to hold that there is sufficient ground H
1126 SUPREME COURT REPORTS [2008] 6 S.C.R.
A to proce~d against the accused, learned counsel placed
reliance on the decision of this Court in Union of India Vs.
Praful/a Kumar Sama/ & Anr. 1
12. Mr. Ravindra Keshavrao Adsure, learned counsel
appearing for the State, on the other hand, submitted that there
8 is ample material on record to show a strong motive for
commission of crime, namely, Kunal's proposal to get married
to another girl after an affair with Hema (A-4), which was
obviously, not liked by the appellant and his family members. It
was thus, pleaded that the High Court was justified in dismissing
C appellant's petitions for discharge.
13. Before adverting to the rival submissions, we may
briefly notice the scope and ambit of powers of the Trial Judge
under Section 227 of the Code.
D 14. Chapter XVIII of the Code lays down the procedure for
trial before the Court of Sessions, pursuant to an order of
commitment under Section 209 of the Code. Section 227
contemplates the circumstances whereunder there could be a
discharge of an accused at a stage anterior in point of time to
E framing of charge under Section 228. It provides that upon
consideration of the record of the case, the documents submitted
·with the police report and after hearing the accused and the
prosecution, the Court is expected, nay bound to decide whether
there is "sufficient ground" to proceed against the accused and
F as a consequence thereof either discharge the accused or
proceed to frame charge against him.
15. It is trite that the words "not sufficient ground for
proceeding against the accused" appearing in the Section
postulate exercise of judicial mind on the part of the Judge to
G the facts of the case in order to determine whether a case for
trial has been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift and weigh )( •
the material for the limited purpose of finding out whether or not
H 1
(1979) 3 sec 4
YOGESH @ SACHIN JAGDISH JOSHI v. STATE OF 1127
MAHARASHTRA [D.K. JAIN, J.]
a prima facie case against the accused has been made out. A
The test to determine a prima facie case depends upon the
facts of each case and in this regard it is neither feasible nor
desirable to lay down a rule of universal application. By and
large, however, if two views are equally possible and the Judge
is satisfied that the evidence produced before him gives rise to B
f suspicion only as distinguished from grave suspicion, he will
be fully within his right to discharge the accused. At this stage,
he is not to see as to whether the trial will end in conviction or
not. The broad test to be applied is whether the materials on
record, if unrebutted, makes a conviction reasonably possible. c
[See: State of Bihar Vs. Ramesh Singh 2 and Prafulla Kumar
Sama/ (supra)]
16. In the light of the aforenoted principles, we may now
consider whether or not in the present case the High Court was
justified in declining to discharge the appellant. However, before D
adverting to the circumstances, relied upon by the prosecution
in support of its primary charge that a conspiracy had been
hatched to eliminate Kunal, the essential features of the offence
of conspiracy need to be noticed
17. Section 120Aof l.P.C. defines criminal conspiracy. The E
section reads as under:
"120A. Definition of criminal conspiracy.-When two
or more persons agree to do, or cause to be done,-
(1) an illegal act, or F
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy G
unless some act besides the agreement is done by one
.x or more parties to such agreement in pursuance thereof.
Explanation.-lt is immaterial whether the illegal act is
2
(1977) 4 sec 39 H
1128 SUPREME COURT REPORTS [2008] 6 S.C.R.
A the ultimate object of such agreement, or is merely
incidental to that object."
Section 1208 of l.P.C. provides for punishment for an
offence of criminal conspiracy.
8 18. The basic ingredients of the offence of criminal
conspiracy are: (i) an agreement between two or more persons;
(ii) the agreement must relate to doing or c;wsing to be done
either (a) an illegal act; or (b) an act which is not illegal in itself
but is done by illegal means. It is, therefore, plain that meeting
c of minds of two or more persons for doing or causing to be
done an illegal act or an act by illegal means is sine qua non of
criminal conspiracy. Yet, as observed by this Court in
Shivnarayan Laxminarayan Joshi & Ors. Vs. State of
Maharashtra3 , a conspiracy is always hatched in secrecy and
it is impossible to adduce direct evidence of the common
0
intention of the conspirators. Therefore, the meeting of minds
of the conspirators can be inferred from the circumstances
proved by the prosecution, if such inference is possible.
19. In Mohammad Usman Mohammad Hussain
E Maniyar & Ors. Vs. State of Maharashtra4 , it was observed
that for an offence under Section 1208, the prosecution need
not necessarily prove that the perpetrators expressly agree to
do and/or cause to be done the illegal act, the agreement may
be proved by necessary implication.
F 20. In Kehar Singh & Ors. Vs. State (Delhi
Administration) 5 , the gist of the offence of the conspiracy has
been brought out succinctly in the following words:
"The gist of the offence of conspiracy then lies, not in
G
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 ,. .
3
(1980) 2 sec 465
H
4
5
( 1981 ) 2 sec 443
(1988) 3 sec 609
..
YOGESH @ SACHIN JAGDISH JOSHI v. STATE OF 1129
MAHARASHTRA [D.K. JAIN, J.)
or agreement between the parties. Agreement is essential. A
Mere knowledge, or even discussion, of the plan is not,
per se, enough."
21. Again in State of Maharashtra & Ors. Vs. Som Nath
Thapa & Ors. 6 , a three-Judge Bench of this Court held that to
establish a charge of conspiracy knowledge about indulgence B
t-
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 as the goods or service in c
question could n.ot be put to any lawful use.
22. More recently, in State (NCT of Delhi) Vs. Navjot
Sandhu @ Afsan Guru 7 ; making exhaustive reference to
several decisions on the point, including in State Through
D
-,.: Superintendent of Police, CBI/SIT Vs. Nalini & Ors. 8 ,
Venkatarama Reddi, J. observed thus:
"Mostly, the conspiracies are proved by the circumstantial
evidence, as the conspiracy is seldom an open affair.
Usually both the existence of the conspiracy and its objects E
have to be inferred from the circumstances and the conduct
of the accused (per Wadhwa, J. in Nalini's case at page
516). The well known rule governing circumstantial
evidence is that each and every incriminating circumstance
., must be clearly established by reliable evidence and "the F
circumstances proved must form a chain of events from
which the only irresistible conclusion about the guilt of the
accused can be safely drawn and no other hypothesis
against the guilt is possible." (Tanviben Pankajkumar
case 9 , SCC page 185, para 45). G.N. Ray, J. in Tanibeert
G
Pankajkumar observed that this Court should not allow
J(
s (1996) 4 sec 659
7
(2005) 11 sec 500
.. a (1999) 5 sec 253
9
(1997) 7SCC 156 H
1130 SUPREME COURT REPORTS [2008] 6 S.C.R.
A the suspicion to take the place of legal proof."
23. Thus, it is manifest that the meeting of minds of two or
more persons for doing an illegal act or an act by illegal means
is sine qua non of the criminal conspiracy but it may not be
possible to prove the agreement between them by direct proof.
B Nevertheless, existence of the conspiracy and its objective can
be inferred from the surrounding circumstances and the conduct
of the accused. But the incriminating circumstances must form
a chain of events from which a conclusion about the guilt of the
accused could be drawn. It is well settled that an offence of
C conspiracy is a substantive offence and renders the mere
agreement to commit an offence punishable even if an offence
does not take place pursuant to the illegal agreement.
24. Bearing in mind the essential features of the offence
of criminal conspiracy, enumerated above, we may advert to
0
the facts of the instant case. The relevant portion of the charge-
sheet filed against all the accused reads as follows:
"... Though son of the complainant Kunal Parihar got
married with accused No.4 Hema Joshi, his family again
E arranged for another marriage with one Meenal of Baroda
on 24.2.2001. Engagement ceremony took place and date
of marriage was fixed as 30.11.2001. this fact came to
the knowledge of the accused No. 1, 2, 3, 4 & 5 and 11 &
12. Therefore, in order to teach a lesson to the
F complainant they hatch conspiracy to kill his only son,
Kuna/. Accordingly accused No. 1 contacted accused
No. 6 Suresh Jhajara and further informed him the
complainant and his son should be taught a lesson as
Kuna/ Parihar betrayed him. Hence should be taught a
lesson and further asked to carry out future plan.
G
Accused No.6, contacted accused No.7 and included him
in the aforesaid conspiracy. Accused No.1 to 4, contacted
accused No.16, through accused No.6 and 7, accused
No.16 pending is a notorious criminal. Criminal cases are
H pending against him in the District Court of Pune. In the
YOGESH@ SACHIN JAGDISH JOSHI v. STATE OF 1131
MAHARASHTRA [D.K. JAIN, J.]
offence regarding body, accused No.7 contacted him A
through witnesses Atul Lohar in order to carry out the
aforesaid plan. Accused No.1 gave Rs.80,000/- to accused
No.7 via accused No.6. Accused No.16, in order to cause
hurt to Kuna I introduced accused No.8, 9, 10, 13, 14, 15
to accused No.7. Accused No.7 asked accused No.8, 9, B
10, 13, 14, 15 to joint the aforesaid conspiracy and in
order to carry out the aforesaid conspiracy successfully
accused No.7 purchased one Maruti Car No.MH-14 D-
3027 from witness Afzal Khan Ibrahim Khan, resident of
Dehu Road and also Motor Cycle No.MH-14-M-5786. By c
using the aforesaid vehicles accused No.7 to 10 and 13
to 15 have committed ghastly murder of Kuna I. In order to
carry out the aforesaid conspiracy successfully accused
No.7 has used revolver, khukri, sickle, sword and iron bar
and supplied it to accused No.8 to 10 and from 13 to 15,
D
by using the aforesaid weapons the aforesaid persons
.., have assaulted Kunal Parihar by which he sustained grave
injuries and ultimately died. Hence accused No.1, 2, 3, 4,
5, 6, 7, 11 and 12 have charged been under Sections
302, 1208 IPC and accused No.7, 8, 9, 10, 13, 14, 15
and 16 have charged u/s 302 read with 1208 IPC and E
under Arms Act Section 3 and 25."
[Emphasis supplied]
25. Thus, according to the prosecution version, when
accused, A-1 to A-5, A-11 and A-12 learnt about the marriage F
1 of Kuna I with some other girl, they hatched a conspiracy to teach
a lesson to the father of Kunal, the deceased. In furtherance
thereof, accused A-1 contacted one of the assassins to kill Kun al.
It is alleged that accused A-1 to A-4 also contacted accused A-
16, a notorious criminal. In other words, the gravamen of the G
accusation by the prosecution is that it is accused A-1 to A-5,
A-11 and A-12 who had hatched the conspiracy; acted in concert
." to give effect to their plan to get Kunal murdered and in
pursuance of the aforesaid criminal conspiracy, the other
accused facilitated commission of the said crime. It is common H
1132 SUPREME COURT REPORTS (2008] 6 S.C.R.
A ground that the case of the prosecution is based on the
circumstantial evidence, namely, threatening calls from the side
of the accused to the complainant, his family and the earlier
relationship between the deceased and accused No.4. From
the material on record, it is manifestly clear that it was the family
B members of the appellant, one of their employees and a friend
who allegedly had all entered into an agreement to eliminate
the deceased. However, as noted above, accused A-1, A-2, A-
4, A-11 and A-12 already stand discharged from the charges
framed against them under Sections 1208 and 302 l.P.C vide
C orders dated 7th July, 2006 and 14th May, 2007, passed by the
High Court and the Sessions Judge respectively. While
discharging the said accused, both the courts have come to the
conclusion that there is no material on record to show that
they had hatched a conspiracy to commit murder of Kunal.
Thus, the stand of the prosecution to the effect that the
0
parents, sister and friends of the appellants had entered into
a criminal conspiracy stands rejected by virtue of the said
orders of discharge. Furthermore, in its order dated 7th July,
2006, the High Court has opined that the circumstances, relied
upon by the prosecution, even if accepted in its entirety, only
E create a suspicion of motive, which is not sufficient to bring
home an offence of murder. As noted above, State's petition
for special leave against the said judgment has already been
dismissed.
F 26. We are, therefore, of the view that in the light of the
subsequent events, namely, the orders of the High Court dated
7th July, 2006 in Criminal Writ Petitions No. 1283 & 1284 of
2006, discharging appellant's mother, sister and two close
associates, accused Nos.2, 4, 11 and 12 respectively; order
G dated 30th April, 2007 passed by this Court dismissing the
Special Leave Petition preferred by the State against order
dated 7th July, 2006 and order dated 14th May, 2007 passed by
the Sessions Judge, Satara, discharging the father (A-1) of the
appellant, stated to be the mastermind behind the entire
conspiracy, for offences under Sections 1208 and 302 l.P.C.,
H
YOGESH@ SACHIN JAGDISH JOSHI v. STATE OF 1133
MAHARASHTRA [D.K. JAIN, J.]
on same set of circumstances and accusations, no sufficient A
ground survives to proceed against the appellant for the
aforementioned offences.
27. For the reasons aforesaid, we are constrained to allow
the appeals. Consequently, the impugned orders are set aside
and the appellant is discharged from the charges levelled 8
against him in the charge-sheet.
B.B.B. Appeals allowed.
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