Dismissed

Dilip Sao v. The State Of Jharkhand

Jharkhand HC10 Aug 2018Cr.Rev./1320/2017

Case brief

AI extract

What is this about?

In two criminal revisions, petitioners challenged the rejection of their discharge applications in a murder conspiracy case involving the killing of Sushil Srivastava. The High Court dismissed the revisions, holding that independent witness testimony confirmed a gang meeting 15 days prior to the incident, justifying the trial court's refusal to discharge the petitioners based on strong suspicion o

What did the court decide?

The discharge applications of the petitioners in both criminal revisions were dismissed.

Dilip Sao Vs The State Of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 908 of 2017

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Shambhu Nath Tiwary @ Sambhu Nath Tiwari

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... … Petitioner

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Versus

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The State of Jharkhand ... … Opposite Party

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With Cr. Revision No. 1320 of 2017

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Dilip Sao ... … Petitioner

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Versus The State of Jharkhand … … Opposite Party

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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY

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For the Petitioners : Mr. A.K. Kashyap, Sr, Advocate For the State : Mr. G.S. Prasad, A.P.P. ---------

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10/10.08.2018 Heard Mr. A.K. Kashyap, learned senior counsel for the petitioners in both the cases and Mr. G.S. Prasad, learned A.P.P. for the State.

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2. Since the orders impugned, although separate, arise out of Sessions Trial No. 141/2016 and since the question of law and fact involved are same and similar, both the applications are being disposed of by this common order.

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3. In Cr. Revision No. 908 of 2017, the petitioner is aggrieved by the order dated 01.06.2017 passed by the learned Sessions Judge, Hazaribag in S.T. No. 141/2016, arising out of Hazaribag (Sadar) P.S. Case No. 610 of 2015, corresponding to G.R. No. 2325 of 2015, by which the application preferred by the petitioner for discharge has been rejected.

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4. In Cr. Revision No. 1320 of 2017, the petitioner is aggrieved by the order dated 28.07.2017 passed by the learned Sessions Judge, Hazaribag in S.T No. 141/2016, arising out of Hazaribag (Sadar) P.S. Case No. 610 of 2015, corresponding to G.R. No. 2325 of 2015, by which the discharge application preferred by the said petitioner also has been rejected.

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5. Assailing the impugned orders dated 01.06.2017 and 28.07.2017, Mr. A.K. Kashyap, learned senior counsel for the petitioners has submitted that there is no iota of evidence which would suggest the involvement of the petitioners in

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committing the murder of Sushil Srivastava. Learned senior counsel for the petitioners submits that merely on an assumption that there was a meeting held in the house of Vikash Tiwary which was attended by several persons including the petitioners on the basis of rumour in the locality the discharge application preferred by the petitioners have been rejected. Learned senior counsel submits that so far as the angle of conspiracy is concerned in absence of any direct or indirect evidence and only on account of some rumour in the locality the same is considerably diminished which fact has not been considered by the learned trial court. It has further been submitted that the impugned orders do not contain justifiable reasons which would entail rejection of the discharge application preferred by the petitioners and in such circumstances the impugned orders deserves to be quashed and set aside.

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6. Mr. G.S. Prasad, learned A.P.P. for the State on the other hand while going through the case diary has stated that several witnesses have substantiated the fact that there was a meeting held 15 days prior to the occurrence in the house of Vikash Tiwary in which the petitioners had participated and therefore there was a prior meeting of mind which led to the incident in which a criminal namely Sushil Srivastava was gunned down in the Hazaribag Civil Court premises.

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7. The allegation leveled in the First Information Report is that on 02.06.2015 at about 10:30 A.M. while a notorious criminal in the name of Sushil Srivastava after being produced in different courts was being taken to the court hazat under Police custody all of a sudden a person had come down from a Bolero vehicle parked near a Gulmohar tree and started firing upon Sushil Srivastava and his associates with a AK 47 resulting in Sushil Srivastava and his associates suffering gunshot injury. It has been alleged that a grenade was also thrown to scare away people. It has been stated that the Police Party had also resorted to gun firing but the accused persons had managed to flee away. Allegation has also been leveled that the incident was on account of the gang rivalry in which Vikash

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Tiwary of Kishore Pandey group and his other associates were involved. It has been alleged that subsequently Sushil Srivastava succumbed to the gunshot injuries suffered by him.

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8. Based on the aforesaid allegations Hazaribag (Sadar) P.S. Case No. 610/2015 was instituted in which after investigation charge-sheet was submitted against several accused persons including the present petitioners. After cognizance was taken separate discharge applications were preferred by the petitioners which were rejected by the impugned orders.

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9. Since it has been submitted by the learned senior counsel for the petitioners that merely on account of rumour floating in the locality that there was a meeting at the residence of Vikash Tiwary in which his associates including the petitioners were present and the same cannot be construed to mean that the petitioners were also involved in the conspiracy to commit the murder of Sushil Srivastava the case diary which was called for has been visited.

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10. It appears that the statement of the independent witnesses have been recorded in para 33, 34, 35 and 36 of the case diary. In para 33 one Sallauddin Ansari had given his statement in which he had stated that there was a discussion in the locality that a meeting was held 15 days prior to the date of the incident in the residence of Vikash Tiwary in which the petitioners had participated. In para 34, 35 and 36 of the case diary witnesses Mansoor Ansari, Munna Singh and Bittu Singh has stated in unison about the participation of the petitioners in the meeting held in the residence of Vikash Tiwary 15 days prior to the incident. Therefore, it has been categorically established that there was indeed a meeting held in the residence of Vikash Tiwary as stated by the independent witnesses 15 days prior to the incident and the involvement of the said persons in conspiring to commit the murder of Sushil Srivastava cannot be ruled out merely on the plea that there is absence of direct evidence involving the petitioners.

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11. The petitioners are alleged to be the conspirators along with other accused persons and the theory of conspiracy

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has been explained by the Hon’ble Supreme Court in the case of “ State v. Nalini” reported in (1999) 5 SCC 253, in which the principles which have been enunciated are as follows:

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“583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.

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1. Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.

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2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

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3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.

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4. Conspirators may for example, be enrolled in a chain – A enrolling B , B enrolling C , and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrellaspoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy

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that all the conspirators need to agree to play the same or an active role.

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5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.

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6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.

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7. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand “this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders”.

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8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a

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conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

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9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.

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10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime. ”

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12. Prior meeting of mind with the members of the Vikash Tiwary gang in the residence of Vikash Tiwary just 15 days prior to the incident cannot be simply brushed aside by stating that the said meeting was for other purposes. Committing a crime of this nature in which a rival gang leader is gunned down within the Civil Court premises cannot be termed to be an act without there being thorough preparation and planning for committing such offence. Some of the

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witnesses in course of investigation has stated about the members of the Vikash Tiwary gang fanning out in the court premises at the time of production of Sushil Srivastava and the act of firing upon Sushil Srivastava and his associates with an AK 47 and the subsequent escapade of the accused persons does point to a wider angle of conspiracy which cannot be achieved without there being a prior meeting of minds and a meticulous planning to achieve the solitary purpose of eliminating Sushil Srivastava. The evidence of the witnesses as recorded in para 33, 34, 35 and 36 of the case diary cannot therefore be discarded when there is presence of a strong suspicion of the petitioners participating in the meeting and the subsequent event which had taken place after 15 days. The angle of conspiracy has to be deduced from the evidence led during trial and since there appears to be a strong suspicion against the petitioners of being the conspirators in committing the murder of Sushil Srivastava and his associates the learned trial court had rightly rejected the discharge applications preferred by the petitioners.

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13. There being no reasons to conclude otherwise, these applications fail and the same are hereby dismissed.

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(R. Mukhopadhyay, J.)

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Alok/-

Dilip Sao v. The State Of Jharkhand

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Dilip Sao v. The State Of Jharkhand

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