DAMODARversusSTATE OF RAJASTHAN

A                               DAMODAR
                                    v.
                           STATE OF RAJASTHAN

                             SEPTEMBER 18, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

          Code a/Criminal Procedure, 1973-Section 154-FJ.R.. -Jnformation
    of commission of offence over phone-Whether Fl.R .. -Unknown person
    initially giving information about commission of offence on telephone-
C   Informant subsequently lodging a written report with the police-Held,
    telephonic information would not constitute F.l.R. as the information given
    was cryptic-Subsequent report by the informant rightly considered as
    F.I.R. and not as the statement of informant recorded during the course
    of investigation-Investigation-Commencement of-Section 162-Code
D   of Criminal Procedure.

         Penal Code-Section 120 B-Conspiracy-Ingredients of-Some
    kind of physical manifestation of agreement between the conspirators
    to pursue the criminal object necessary-Independent pursuing of the
    criminal object by two or more persons would not constitute conspiracy-
E   Nature of-Secretive in nature-Can be proved by leading circumstantial
    evidence.

          Code of Criminal Procedure-Section 313-Examination of the
    accused under-Importance of-Is not a mere formality-Opportunity
F   given to accused to explain the incriminating circumstances against him
    in the background of the prosecution's evidence.

         Criminal Trial-Evidence-Appreciation of-Assessment ofevidence
    should be made keeping in mind the realities of the case-Hypersensitive
    approach should not be adopted
G
         The allegation of the prosecution was that PW 15 and the
    deceased were travelling on a cycle. M was driving a station wagon
    rashly. B exhorted M to run the vehicle over the deceased. Thereafter,
    M ran the vehicle over the deceased. J also came to the place of
H   occurrence on a scooter and ensured that the deceased was dead. The
                                       904
                        DAMODAR v. STATE                             905

motive behind the crime was stated to be property dispute between the A
deceased and 8.

     The information about the occurrence was initially received by
the police from some unknown persons. Subsequently, PW 15 lodged
a written report with the police, which was treated as the F.I.R. Apart B
from M, 8 and J, the son of 8 (D) was also charged for the offence
of conspiracy.

     The trial court convicted M for offence under Section 302 IPC
and also under Section 302 IPC read with Section 120 8 IPC. 8 was
convicted for offence under Section 302 read with Section 34 and C
Section 302 read with Section 120 8 IPC. D and J were convicted for
offence under Section 302 read with Section 120 8 IPC. All the accused
persons were sentenced to imprisonment for life and also to fine. The
conviction and the sentence awarded to the accused by the trial court
were confirmed by the High Court.                                      D
     On appeal by M, 8 and D (J died during the pendency of the
appeal before the High Court) to this Court, the counsel for the
appellants argued, inter alia, that -

     (i) the investigation was started on the basis of a telephone call E
received by the police. PW 15 gave a written report at a later stage.
Therefore, the telephonic information would constitute the F.l.R. and
not the report of PW 15. As such the written report of PW 15 is hit
by the provisions of Section 162 of the Code of Criminal Procedure.

     (ii) there is no material to apply the provisions of Section 120 8    F
or Section 34 IPC for convicting the accused.

     (iii) the evidence produced by the prosecution is unreliable.

     Acquitting all the accused from charges under Section 302 read G
with Section 120 8 IPC but convicting M under Section 302 IPC, the
Court

     HELD : 1.1. The question as to at what stage the investigation
commences has to be considered and examined on the facts of each case,
especially, when the information of an alleged cognizable offence has H
    906                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A been given on telephone. Any telephonic information about commission
  of a cognizable offence, if any, irrespective of the nature and details of
  such information cannot be treated as first information report. If the
  telephonic message is cryptic in nature and the officer in charge, proceeds
  to the place ofoccurrence on the basis of that information to find out the
B details of the nature of the offencl' if any, then it cannot be said that the
  information which had been received by him on telephone shall be deemed
  to be F.I.R. The object and purpose of giving such telephonic message is
  not to lodge the first information report but to make the officer in charge
  of the police station to reach the place ofoccurrence. On the other hand,
  if the information given on telephone is not cryptic and on the basis of
C that information the officer in charge is prima facie satisfied about the
  commission of a cognizable offence and he proceeds from the police
  station after recording such information to investigate such offence then
  any statement made by the person in respect of the said offence including
  about the participants shall be deemed to be a statement made by a
D person to the police officer in the course of investigation covered by
  Section 162 of the Code of Criminal Procedure. (912-G-H, 913-A-CJ

          Ramsinh BavajiJadejav. State o/Gujarat, (1994] 2 SCC 685; referred
    to.

E        1.2. The trial court has rightly held that the telephonic information
    did not constitute the F.I.R. and therefore the written report lodged
    by PW 15 is not hit by Section 162 of the Code of Criminal Procedure.
                                                                      (913-D)

F       2.1. Conspiracies are not hatched in open, by their nature, they
  are secretly planned, they can be proved even by circumstantial
  evidence, the lack of direct evidence relating to conspiracy has no
  consequence. The most important ingredient of the offence of conspiracy
  is the agreement between two or more persons to do an illegal act. In
G a case where criminal conspiracy is alleged, the court must inquire
  whether the two persons are independently pursuing the same end or
  they have come together to pursue the unlawful object. The former
  does not render them conspirators but the latter does. For the offence
  of conspiracy some kind of physical manifestation of agreement is
  required to be established. The express agreement need not be proved.
H The evidence as to the transmission of thoughts sharing the unlawful
                        DAMODAR v. STATE                           907

act is not sufficient. A conspiracy is a continuing offence which A
continues to subsist till it is executed or rescinded or frustrated by
choice of necessity. During its subsistence whenever one of the
conspirators does an act or series of acts, he would be guilty under
Section 120 B of the Indian Penal Code. (914-E-H]

     E.K. Chandrasenan v. State of Kera/a, AIR (1995) SC 1066; Kehar
                                                                          B
Singh and Ors. v. The State (Delhi Administration), AIR (1988) SC 1883;
Ajay Agarwal v. Union of India and Ors., JT (1993) 3 SC 203; Yash Pal
Mittal v. State of Punjab, [1977] 4 SCC 540 and State of Maharashtra
v. Som Nath Thapa, [1996] 4 SCC 659, relied on.
                                                                          c
     2.2. The evidence on record is too scanty and meagre to bring in
application of Section 120 B IPC. That being so, the conviction of all
the three appellants under Section 302 read with Section 120 B IPC
cannot be maintained. There is also practically no material to maintain
the conviction of appellant B for offence punishable under Section 302 D
read with Section 34 IPC. [917-D-E]

     3.1. Examination of the accused under Section 313 of the Code
of Criminal Procedure is not an empty formality. The purpose is to
bring to the notice of the accused the materials brought on record by
the prosecution to substantiate its accusations. An opportunity is E
granted to the accused to explain incriminating circumstances against
him have his say in the background of the evidence brought on record
by the prosecution. (912-B-C]

     3.2. When the substance of the accusations was put to M in F
examination under Section 313 of the Code of Criminal Procedure, no
plea was taken that the offending vehicle did not belong to the accused or
that he was not driving. Only an evasive reply was given that the accused
did not know driving. Therefore, the mere fact that the officer did not
enquire as to whether M had a driving licence or not is too insignificant G
factor to corrode credibility of the ocular testimony. (912-A-C]

      4.1. Long passage of time sometimes erases the memory of the
witness and minute details are lost sight of. If a case is proved perfectly
it is argued that it is artificial. If a case has some flaws inevitably
because human beings are prone to err, it is argued that it is too H
    908                  SUPREME COURT REPORTS (2003) SUPP. 3 S.C.R.
A imperfect. Therefore, while assessing the evidence one has to keep
    realities in view and not adopt a hypersensitive approach. (911-E-FJ

         4.2. The convktion of appellant M under Section 302 IPC is
    maintained. The conclusions arrived at by the two courts below on
B   evaluation of evidence do not need any interference. The discrepancies
    pointed out are too trifle to affect credibility of PW IS's evidence.
    Filtering out these minor discrepancies, the cream of the evidence
    remains on which the credibility of the evidence lies. (917-Fl

        CRIMINAL APPELATE JURISDICTION : Criminal Appeal No.
C   1190 of 2001.

         From the Judgment and Order 4.7.2001 of the Rajasthan High Court
    in D.B. Cr!. A. No. 700 of 1999.

                                      WITH
D
          Cr!. A. Nos. 45 and 46 of 2002.

        Sushi! Kumar, R.P. Wadhwani, Sidharth Luthra, Adolf Mathew,
    Vaibhav Gaggar, Sanjay Jain and D.B. Goburdhan for the Appellant.
E         Ms. Sandhya Goswami for the Respondent.

          The Judgment of the Court was delivered by

          ARIJIT PASAYA T, J. : In these three appeals the factual matrix
F   relates to the same incident and the judgment impugned being the same
    they are heard together and disposed of by this common judgment.

        Appellant-Munna (in Cr!. A.45/2002) faced trial for alleged commission
  of offence punishable under Section 302, appellant-Balak Dass (in Crl.
  A.No. 46/2002) under Section 302 read with Section 34, Section 302 read
G with Section 1208 and Section 302 read with Section 114, and appellant-
  Damodar (in Cr!. A. No. 1190/200 I) under Section 302 read with Section
  34, and Section 302 read with Section 1208 of the Indian Penal Code, 1860
  (in short the 'IPC'). Accused appellant-Munna was found guilty of offence
  punishable under Section 302, 302 read with Section 120B while other two
H appellants Damodar and Balak Dass (A-4 and A-2 respectively) were found
                DAMODAR v. STATE [PASAYAT, J.]                    909

guilty of offence punishable under Section 302 read with Section 120B. A
Appellant-Balak Dass was additionally found guilty of offence punishable
under Section 302 read with Section 34 !PC. One Jagdish who also faced
trial, was convicted and sentenced. Though he had preferred an appeal
before the High Court, but the same was held to have abated on account
of appellant's death.                                                    B

      They were alleged to be perpetrators of homicidal death of one Guru
Ram Ratan Giri (hereinafter referred to as the 'deceased') an octogenarian
Sadhu. The motive of crime was stated to be property dispute. On the basis
of information given by Shiv Prasad (PW-15) on 18.10.1990, the fateful C
day, law was set in motion. According to the informant the deceased had
gone to repair a cycle. When he did not return for long time, informant
went to search for him. When they were returning on the cycle, they found
station wagon RSZ 5253 was being driven by accused-Munna rashly. The
deceased asked Shiv Prasad to get down from the cycle. The vehicle was
being driven by Munna whereas accused-appe11ants Damodar and Balak D
Dass were accompanying him along with others. On being instructed by
accused-appellant Balak Dass, Munna ran the vehicle over the deceased.
At the spot, accused-Jagdish (A-3) who had died during the pendency of
the appeal before the High Court, was present and he came in a scooter
made sure that the deceased was no longer alive and they all run away. E
Another disciple of the deceased named Santosh Giri (PW6) also witnessed
the occurrence. Investigation was undertaken by Setha Ram (PW-16). The
summum bonum of materials collected during investigation reveals
involvement of four accused persons named above and others. Accordingly,
charge sheet was filed. Initially on the basis of information lodged,
investigation commenced in respect of offence punishable under Section F
307 read with Section 34 !PC, later on after the death of the deceased the
case was converted into one for offence punishable under Section 302 read
with Section 34 !PC. Seventeen witnesses were examined and 26 documents
were exhibited to substantiate prosecution version. The accused persons
pleaded innocence and 5 documents were exhibited to substantiate their G
plea of innocence. On consideration of the materials on record, Additional
Session Judge, Ajmer found the accused-appellants guilty and convicted
them as aforesaid. Accused-Munna was convicted and sentenced to
imprisonment for life and to pay a fine of Rs. 5,000. Accused-Balak Dass
was convicted for an offence punishable under Section 302 read with H
    910                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A Section 34 and Section 302 read with Section 1208 and was sentenced to
    undergo imprisonment for life and to pay a fine of Rs. 5,000. Accused-
    Jagdish was convicted for an offence punishable under Section 302 read
    with Section 1208 and sentenced to imprisonment for life and to pay a fine
    of Rs. 5,000. Similar sentence was imposed on accused-Damodar.

B
         In appeal, the High Court of Rajasthan at Jaipur put its seal of
    approval on the convictions and sentences and dismissed the appeal filed
    by the accused appellants. As noted above, accused-Jagdish died during
    the pendency of the appeal before the High Court. Accused persons have
C   separately filed three appeals before this Court.

          In support of the appeals, Mr. Sushi! Kumar, learned senior counsel
   for the appellants submitted that the version of PW-15, the informal which
   has been held to be reliable by both the trial Court and the High Court
   suffers from vulnerability. The evidence on record clearly establishes that
D his presence at the spot of occurrence at the time of alleged incident is
  highly doubtful. There is even discrepancy as to the place where the FIR
  was written. In several documents it was indicated, for example, the inquest
   report that the death was due to accident and it appears to be a case where
  after deliberation a plain simple case of accident has been termed as a
E murder with oblique motive. It is accepted by prosecution that there was
  a telephonic call received on the basis of which investigation was started.
  Therefore, the so-called FIR by PW! 5 is one covered by Section 162 of
  the Code of Criminal Procedure, 1973 (in short the 'Code'). There is no
  material to show that accused-Munna was knowing driving or was the
F owner of the vehicle. If the vehicle was being driven at a speed of 40 K.M.,
   it is not possible for any person much less PW-15 to hear from a distance
  of about 20 feet as to what was being said. Therefore, it is highly
  improbable that he could have heard accused-Balak Dass asking accused-
  Munna to run the vehicle over the deceased. The ingredients for bringing
  in application of Section 1208 are clearly absent. There is no material
G whatsoever brought on record to prove any conspiracy. It was therefore
  submitted that prosecution version is highly improbable and not
  supported by any material evidence on record. Since PW-6 has been dis-
  believed, the defence version that there was no eye-witness as claimed and
  that PWs 6 and 15 came to the spot after hearing about the accident is more
H probable.
                DAMODAR v. STATE [PASAYAT, J.]                        911

      In response, learned counsel for the respondent-State submitted that A
PW-15 was about 13 years of age at the time of accident. Though his
mental faculties were of high order, the fact that he was witnessing before
his eyes a carefully planned murder is bound to have created a sense of
panic, and disturbance of mental composure. Therefore, minor discrepancies
in his evidence cannot be a ground for discarding his credible, cogent and B
trustworthy evidence. The telephonic call was made by unknown person
and did not disclose any cognizable offence. Merely because the officer
who received the telephone message wanted to verify whether any incident
had taken place, that cannot be a ground to hold that the report lodged by
the informant PW-15 was hit by Section 162 of the Code. The case of
conspiracy has been clearly made out. As conspiracies are always hatched C
in a secret manner, there cannot be any direct evidence of conspiracy.
Accusations, according to her have been established by evidence on record
 and the concurrent findings recorded by the two courts below should not
be interfered, and the appeals should be dismissed.
                                                                            D
      In order to consider the correctness of conclusions arrived at by the
two cour:s below, it has to be seen whether evidence of PW-15 has been
rightly accepted to be truthful and reliable. So far as PW-15 is concerned,
it has to be noted that at the time of occurrence he was about 13 years of
age and was a student. The incident is of October 1990. PW-15 was
examined in August 1997 i.e. nearly after seven years. It cannot be lost E
sight of that long passage of time some times erases the memory and
minute details are lost sight of. In this background, it has been stated that
if a case is proved perfectly it is argued that it is artificial. If a case has
some flaws inevitably because human beings are prone to err, it is argued
that it is too imperfect. While, therefore, assessing the evidence one has F
to keep realities in view and not adopt a hyper sensitive approach. The so-
called discrepancies pointed out by learned counsel for the appellants like
the vehicle from which witness saw the approaching bus or with which part
of the offending vehicle the cycle was hit are too trifle to affect credibility
of PW' s-15 evidence. Filtering out these minor discrepancies, cream of the G
evidecne remains on which the credibility of the evidence lies. That being
so, the conclusions arrived at by the two courts below on evaluation of
evidence do not need any interference.

     Coming to the plea that the officer did not enquire as to whether the
accused was the owner of the vehicle or had a driving licence, significantly H
    912                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A when the substance of the accusations was put to the accused in examination
  under Section 313 of the Code, no plea was taken that the offending vehicle
  did not belong to the accused or that he was not driving. Only an evasive
  reply was given that he (accused-Munna) did not know driving. There is
  a gulf of difference between saying that he was not driving the vehicle or
B was not the owner of the vehicle. Examination under Section 313 of the
  Code is not an empty formality. The purpose is to bring to the notice of
  the accused the materials brought on record by the prosecution to
  substantiate its accusations. An opportunity is granted to the accused to
  explain incriminating circumstances against him and have his say in the
  background of the evidence brought on record by the prosecution. Therefore,
C the mere fact that the officer did not enquire as to whether the accused-
  Munna had a driving licence or not is too insignificant factor to corrode
  credibility of the ocular testimony. Further, even if he was not the owner
  of the vehicle or did not have a driving licenee, it is really of no
  consequence if he, in fact, drove the vehicle. Evidence on record clearly
D establishes that he did so.
         PW-15 has categorically stated as to how he knew the accused
    persons and their names. In spite of incisive cross-examination, the defence
    was not able to even water down the said assertion of PW-15. Accusations
    have been brought home, as rightly observed by the trial Court and the
E   High Court, by the prosecution so far as accused Munna is concerned.

         Coming to the question whether the message received on telephone
    would be treated as the FIR, the D.D. entry (Ex.P.21) shows that unknown
    person had given an information about a vehicle hitting the deceased. In
    order to constitute the FIR, the information must reveal commission of an
F   act which is a cognizable offence.

        As observed by this Court in Ramsinh Bavaji Jadeja v. State of
  Gujarat, [1994] 2 SCC 685, the question as to at what stage the
  investigation commences has to be considered and examined on the facts
G of each case, especially, when the information of an alleged cognizable
  offence has been given on telephone. Any telephonic information about
  commission of a cognizable offence, if any, irrespective of the nature and
  details of such information cannot be treated as first information report.
  If the telephonic message is cryptic in nature and the officer in charge,
  proceeds to the place of occurrence on the basis of that information to find
H out the details of the nature of the offence if any, then it cannot be said
                 DAMODAR v. STATE [PASAYAT, J.]                         913

that the information which had been received by him on telephone shall A
be deemed to be a FIR. The object and purpose of giving such telephonic
message is not to lodge the first information report but to make the officer
in charge of the police station to reach the place of occurrence. On the other
hand, if the information given on telephone is not cryptic and on the basis
of that information the officer in charge is prima facie satisfied about the B
commission of a cognizable offence and he proceeds from the police
station after recording such information to investigate such offence then
any statement made by any person in respect of the said offence including
about the participants shall be deemed to be a statement made by a person
to the police officer in the course of investigation covered by Section 162
of the Code.                                                                   C
      On reading of the DD entry (Ex. P. 21) we are of the view that the
trial Court has rightly held that it did not constitute the FIR and therefore
the written report lodged by PW-15 vide Exhibit P-20 is not hit by Section
162 of the Code.                                                              D
      All the three accused presons have been found guilty of offence
punishable under Section 302 read with Section 1208 IPC. The conspiracies
are not hatched in open, by their nature, they are secretly planned, they
can be proved even by circumstantial evidence, the lack of direct evidence
relating to conspiracy has no consequence. (See : E.K. Chandrasenan v. E
State of Kera/a, AIR (1995) SC 1066).

     In Kehar Singh and Ors. v. The State (Delhi Administration), AIR
J988 SC 1883 at p. 1954, this Court observed :

               "Generally, a conspiracy is hatched in secrecy and it may be F
         difficult to adduce direct evidence of the same. The prosecution
         will often rely on evidence of acts of various parties to infer that
         they were done in reference to their common intention. Tue
         prosecution will also more often rely upon circumstantial evidence.
         The conspiracy can be undoubtedly proved by such evidence G
         direct or circumstantial. But the court must enquire whether the
         two persons are independently pursuing the same end or they have
         come together to the pursuit of the unlawful object. The former
         does not render them conspirators, but the latter does. It is,
         however, essential that the offence of conspiracy required some H
    914                   SUPREME COURT REPORTS (2003) SUPP. 3 S.C.R.

A            kind of physical manifestation of agreement. The express
             agreement, however, need not be proved. Nor actual meeting of
             the two persons is necessary. Nor it is neccessary to prove the
             actual words of communication. The evidence as to transmission
             of thoughts sharing the unlawfu I design may be sufficient.
             Conspiracy can be proved by circumstances and other materials.
B
             (See : State of Bihar v. Paramhans, (1986) Pat LJR 688). To
             establish a charge of conspiracy knowledge about indulgence in
             either an illegal act or a legal act by illegal means is necessary.
             In some cases, intent of unlawful use being made of the goods
             or services in question may be inferred from the knowledge itself.
c            This apart, the prosecution has not to establish that a particular
             unlawful use was intended, so long as the goods or service in
             question could not be put to any lawful use. Finally, when the
             ultimate offence consists of a chain of actions, it would not be
             necessary for the prosecution to establish, to bring home the
D            charge of conspiracy, that each of the conspirators had the
             knowledge of what the collaborator would do so, so long as it is
             known that the collaborator would put the goods or service to an
             unlawful use. (See: State of Maharashtra v. Som Nath Thapa, JT
             (1996) 4 SC 615).
E
           It was noticed that Sections 120-A and 120-B !PC have brought the
    law of conspiracy in India in line with English law by making an overt
    act inessential when the conspiracy is to commit any punishable offence.
    The most important ingredient of the offence being the agreement between
F   two or more persons to do an illegal act. In a case where criminal
    conspiracy is alleged, the court must inquire whether the two persons are
    independently pursuing the same end or they have come together to pursue
    the unlawful object. The former does not render them conspirators but the
    latter does. For the offence of conspiracy some kind of physical manifestation
    of agreement is required to be established. The express agreement need
G   not be proved. The evidence as to the transmission of thoughts sharing the
    unlawful act is not sufficient. A conspiracy is a continuing offence which
    continues to subsist till it is executed or rescinded or frustrated by choice
    of necessity. During its subsistence whenever any one of the conspirators
    does an act or series of acts, he would he held guilty under Section 120-
H   B of the Indian Penal Code.
                DAMODAR v. STATE [PASAYAT, J.]                        915

    Decision in Ajay Agarwal v. Union of India and Ors., JT (1993) 3 A
SC 203 may be usefully referred to. It was held :

             xxx                xxx                xxx                xxx

              "8 ..... It is not necessary that each conspirator must know all
        the details of the scheme nor be a participant at every stage. It is B
        necessary that they should agree for design or object of the
        conspiracy. Conspiracy is conceived as having three elements: (I)
        agreement; (2) between two or more persons by whom the
        agreement is effected; and (3) a criminal object, which may be
        either the ultimate aim of the agreement, or may constitute the C
        means, or one of the means by which that aim is to be accomplished.
        It is immaterial whether this is found in the ultimate objects. The
        common law definition of 'criminal conspiracy' was stated first
        by Lord Denman in Jones' case that an indictment for conspiracy
        must "Charge a conspiracy to do an unlawful act by unlawful
        means" and was elaborated by Willies, J. on behalf of the judges D
        while referring the question to the House of Lords in Mulcahy v.
        Reg and House of Lords in unanimous decision reiterated in
        Quinn v. Leathern :

         'A conspiracy consists not merely in the intention of two or more, E
        but in the agreement of two or more, to do an unlawful act, or
        to do a lawful act by unlawful means. So long as such a design
        rest in intention only, it is not indictable. When two agree to carry
        it into effect, the very plot is an act in itself, and the act of each
        of the parties, promise against promise, actus contra actum,
        capable of being enforced, if lawful; punishable of for a criminal F
        object, or for the use of criminal means.

             This Court in E.G. Barsay v. State of Bombay, held :

             "The gist of the offence is an agreement to break the law.
        The parties to such an agreement will be guilty of criminal G
        conspiracy, though the illegal act agreed to be done has not been
        done. So too, it is an ingredient of the offence that all the parties
        should agree to do a single illegal act. It may comprise the
        commission of a number of acts. Under Section 43 of the Indian
        Penal Code, an act would be illegal if it is an offence or if it is H
    916                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A            prohibited by law."

    In Yash Pal Mittal v. State of Punjab, [1997} 4 SCC 540 the rule was
    laid as follows : (SCC p. 543 para 9).

                   "The very agreement, concert or league is the ingredient of
B            the offence. It is not necessary that all the conspirators must know
             each and every detail of the conspiracy as long as they are co-
             participators in the main object of the conspiracy. There may be
             so many devices and techniques adopted to achieve the common
             goal of the conspiracy and there may be division of performances
c            in the chain of actions with one object to achieve the real end of
             which every collaborator must be aware and in which each one
             of them must be interested. 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
D            conspirators even unknown to the others. The only relevant factor
             is that all means adopted and illegal acts done must be and
             purported to be in furtherance of the object of the conspiracy even
             though there may be sometimes misfire or overshooting by some
             of the conspirators.'
E
             In Mohammad Usman Mohammad Hussain Maniyar and Ors. v.
             State of Maharashtra, [1981] 2 SCC 443, it was held that for an
             offence under Section 1208 !PC, the prosecution need not
             necessarily prove that the perpetrators expressly agreed to do or
             cause to be done the illegal act, the agreement may be proved by
F            necessary implication."

          After referring to some judgments of the United States Supreme Court
    and of this Court in Yash Pal Mitta/ v. State of Punjab, [1977] 4 SCC 540
    and AJay Aggarwalv. Union of India, [1993] 3 SCC 609 the Court in State
G   of Maharashtra v. Som Nath Thapa, [1996] 4 sec 659 summarized the
    position of law and the requirements to establish the charge of conspiracy,
    as under : (SCC p. 668, para 24).

            "24. The aforesaid decisions, weighty as they are, lead us to
            conclude that to establish a charge of conspiracy knowledge about
H           indulgence in either an illegal act or a legal act by illegal means
                DAMODAR v. STATE [PASAYAT, J.]                        917

         is necessary. In some cases, intent of unlawful use being made of A
         the goods or services in question may be inferred from the
         knowledge itself. This ap::rt, the prosecution has not to establish
         that a particular unlawful use was intended, so long as the goods
         or service in question could not be put to any lawful use. Finally,
         when the ultimate offence consists of a chain of actions, it would B
         not be ~ecessary for the prosecution to establish, to bring home
         the charge of conspiracy, that each of the conspirators had the
         knowledge of what the collaborator would do, so long as it is
         known that the collaborator would put the goods or service to an
         unlawful use." (See (2000] 8 SCC page 203 State of Kera/av.
         P. Sugathan and Anr. )"                                             C
      The evidence on record is too scanty and meagre to bring in
application of Section 120B !PC. No material has been brought on record
so for as the appellant-Damodar is concerned, except that he belonged to
the family of Balak Dass. It is also improbable that PW-15 could have D
heard about the exhortation by accused Balak Dass to run over the vehicle
considering the distance from which the statement is said to have been
made and the speed of the vehicle. Merely because accused-Damodar is
the son of Balak Dass who it is brought on record had a dispute with the
deceased over properties is not sufficient to establish the charge of
conspiracy. That being so, the 'conviction of all the three appellants under E
Section 302 read with Section 120B !PC cannot be maintained. There is
also practically no material to maintain the conviction of appellant-Balak
Dass for offence punishable under Section 302 read with Section 34 !PC.
In the ultimate, the conviction of appellant-Munna under Section 302 IPC
is maintained put conviction under Section 302 read with Section 120B !PC F
is set aside. The life sentence imposed on him with the fine for offence
under Section 302 is maintained and he should serve the remaining
sentence. Criminal Appeal No. 45/2002 is allowed to the extent indicated.
The appeals filed by accused-Damodar and Balak Dass (Criminal appeals
No. 1190/2001 and 46/2002 respectively) are allowed and the conviction
and sentence are set aside. They be set at liberty forthwith unless required G
to be in custody for some other case.

B.K.M.                                                  Appeals allowed.