Summary
The appellant alone remained convicted under Sections 302, 201 IPC and the Arms Act for a contract-style shooting of a businessman after the High Court acquitted the shooter and every other co-accused; the case against him rested on a co-accused's disclosure, his own alleged statement leading to recovery of pistols and cartridges from another accused's house, and two independent witnesses who turned hostile saying they had signed blank papers. The Supreme Court acquitted him, holding that the investigation was riddled with lapses, the recovery was unproved, no evidence showed a meeting of minds for conspiracy, a single person cannot conspire once all others are acquitted, and the High Court erred in applying a standard of probability rather than certainty to circumstantial evidence.
Issues
- Whether the Investigating Officer complied with the duties cast on him by Chapter XII of the Code of Criminal Procedure, 1973.
- Whether the High Court, having acquitted all other co-accused of the same crime, erred in not returning a finding on the charge of criminal conspiracy under Section 120-B IPC against the appellant.
- Whether the conviction of the appellant on purely circumstantial evidence, resting on a co-accused's disclosure, an unproved recovery and hostile witnesses, is sustainable.
Provisions considered
- Section 120-B, Indian Penal Code, 1860Conspiracy requires an agreement and meeting of minds between two or more persons to do an unlawful act; with every co-accused acquitted and no evidence of prior common purpose, the charge fails, since a single person cannot hatch a conspiracy. (¶¶ 30, 31, 32, 33, 34)
- Sections 302 and 201, Indian Penal Code, 1860The appellant was not alleged to have shot the deceased; at most he was said to have concealed incriminating articles, and once the conspiracy and common intention were not proved the conviction for murder could not stand, while the recovery underlying Section 201 was itself unproved. (¶¶ 2, 11, 30, 35, 36, 37)
- Section 25(1)(1-b)(a), Arms Act, 1959Conviction for possession of unlicensed pistols and cartridges rested on a recovery whose memo was not prepared or signed by the Investigating Officer, whose witnesses were hostile, and whose ballistic report was never proved. (¶¶ 2, 23, 24, 25, 35, 37)
- Chapter XII (Sections 156, 157, 160, 161, 172 and 173) and Section 79, Code of Criminal Procedure, 1973The Investigating Officer failed in his statutory duties: no case diary of his movements, no record of taking the accused for recovery, no examination of the house owner or local residents, memos not prepared or signed by him, and arrests of out-of-State accused without informing relatives contrary to D.K. Basu. (¶¶ 19, 24, 26, 27, 28, 35, 38, 40, 42, 44)
- Sections 10 and 30, Indian Evidence Act, 1872The High Court held these provisions on acts of conspirators and confessions of co-accused inapplicable yet upheld the conviction, implying that the conspiracy conviction stood; this internally inconsistent course could not be sustained. (¶ 34)
Held
- In a case of circumstantial evidence the circumstances must be cogently established, point unerringly to guilt and form a complete chain excluding every other hypothesis; the High Court's finding that 'in all human probability' the act must have been done by the accused applied a test of probability rather than certainty and was erroneous. (¶¶ 12, 45)
- Where both independent witnesses to the disclosure and recovery turned hostile and deposed that they signed blank papers under police threat, the deceased's nephew named no one, and the Investigating Officer admitted that the disclosure and recovery memos were neither written nor signed by him and bore corrections, the recovery of arms from a house not shown to belong to any accused was not proved; the ballistic report was also not proved by its author. (¶¶ 14, 15, 16, 17, 18, 24, 25, 29, 35, 36, 37)
- The appellant's complicity was suspected only on the disclosure of a co-accused whom the courts disbelieved for all other accused; relying on the same disclosure against the appellant alone was illogical and self-contradictory. (¶¶ 21, 22)
- Conspiracy under Section 120-B needs proof of a meeting of minds; bits of evidence here and there do not suffice, and concealment of articles after the event cannot by itself establish a prior agreement. With all other co-accused acquitted, the requirement of two or more persons is unmet and the conspiracy charge fails. (¶¶ 30, 31, 32, 33)
- The High Court as first appellate court was bound to reappreciate the evidence and record a finding on the Section 120-B charge; upholding the sentence without doing so, while holding Sections 10 and 30 of the Evidence Act inapplicable, cannot be sustained. (¶ 34)
- The police have a statutory and constitutional duty to investigate fairly, maintain prompt and objective case diaries and avoid infirmities that cast doubt on the investigation; the numerous lapses here credibly called the whole investigation into question. (¶¶ 38, 39, 40, 41, 42, 43, 44)
Result
Appeal allowed; High Court's judgment dated 14.01.2016 upholding the appellant's conviction set aside; the appellant to be set at liberty forthwith if not already released. Interlocutory applications disposed of.