K.R. PURUSHOTHAMANversusSTATE OF KERALA

A                              K.R. PURUSHOTHAMAN
                                         v.
                                 STA TE OF KERALA

                                  OCTOBER 25, 2005

B                       [H.K. SEMA AND P.P. NAOLEKAR, JJ.]


           Penal Code, 1860-Sections 120-A, 409 and 477A-Prevention of
     Corruption Act, 1988-Sections 13(J)(c) and (d) r!w Section 13(2)-
C    Prosecution under-Of 4 accused-Acquittal of 2 and conviction of 2
     accused-Death of one of the convicted accused during proceedings-Charge
     of misappropriation of gold used for making ornament of temple-Gold
     proved to be in exclusive custody of convicted deceased accused-Purity of
     gold used not tested-Conviction of appellant-accused by High Court on the
     ground of conspiracy with the deceased accused-On appeal, held:
D    Conspiracy by the accused not proved in the facts of the case-Hence he
     cannot be held responsible for the act done by deceased accused-Conviction
     under provisions of Prevention of Corruption Act not justified as it is not
     proved that the accused was entrusted or under control of the property or
     he had obtained the same for himself or for any other person.

E            Words and Phrases:

             'Conspiracy '-Meaning of in the context of Section 120-B Penal Code,
     1860.

           Appellant-accused No.2 alongwith 3 other accused w.ere tried for
F    offences punishable under Section 13(1)(c) and (d) r/w Section 13(2) of
     Prevention of Corruption Act, 1988 and under Sections 409, 477-A and 120-
     B IPC for having misappropriated the gold utilized for making Golaka
     (Ornament) for Mekkavu Bhagwathy of Chettanikkara Temple.

           Prosecution case was that A-3, the officer of the Board which
G    administered the Temple, was entrusted the gold for preparation of the Golaka.
     The purity of the gold taken from the Gold Bond was tested while the purity
     of the gold taken from Nadavaravu (offerings) in the form of ornaments and
     coins, was not tested. Entire gold was kept in the exclusive custody of A-3.
     Appellant-A-2 was only overall in-charge of the work. There was shortage of
II                                        498
               K.R. PURUSHOTHAMAN v. STATE OF KERALA                      499

gold in the gold bar prepared before A-2 joined and the same was detected        A
after A-2 joined. Immediately after it was noticed that the gold was impure
and it could not be converted into sheets, A-2 sent the report to the Board
administering the Temple and sought permission to take the gold to another
place. A-1 after making certain inquires about the loss of gold during the
process of making the Golaka, felt that wastage of 332 gm. Gold was quite        B
reasonable and accordingly sent a report to the Board which was approved
and accepted by the Board. Later Local Fund Audit after auditing accounts of
the Board, in its first report stated that the wastage of 332 gms. was
unreasonable and in its second report held the accused responsible for the
loss.

      Trial Court acquitted A-1 and A-4 the Commissioner and maker of the
                                                                                 c
Golaka respectively and convicted A-2 and A-3, the appellant and officer of
the Board respectively. A-3 died during the proceedings. In appeal, High Court
found A-2 guilty only on the basis that he had conspired with A-3 dishonestly
or fraudulently to misappropriate the pure gold. Hence the present appeal.
                                                                                 D
      Allowing the appeal, the Court

      HELD: I. I To constitute a conspiracy, meeting of mind of two or more
persons for doing an illegal act or an act by illegal means is the first and
primary condition and it is not necessary that all the conspirators must know
each and every detail of conspiracy. Neither it is necessary that every one of   E
the conspirators takes active part in the commission of each and every
conspiratorial acts. The agreement amongst the conspirators can be inferred
by necessary implications. The existence of conspiracy and its objects are
usually from the circumstances of the case and the conduct of the accused
involved in the conspiracy. 1506-C, DI
                                                                                 F
      1.2. While appreciating the evidence of the conspiracy, it is incumbent
on the Court to keep in mind the well-known rule governing circumstantial
evidence viz., each and every incriminating circumstance must be clearly
established by reliable evidence and the circumstances proved must form a
chain of events from which the only irresistible conclusion about the guilt of   G
the accused can be safely drawn, and no other hypothesis against the guilt is
po~sible. Criminal conspiracy is an independent offence in Penal Code. The
unlawful agreement is sine quo non for constituting offence under Penal Code
and not an accomplishment. Conspiracy consists of the scheme or adjustment
between two or more persons which may be express or implied or partly
                                                                                 H
    500                        SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A   express and partly implied. Mere knowledge, even discussion, of the Plan
    would not per se constitute conspiracy. The offence of conspiracy shall
    continue till the termination of agreement. (506-E, F]

          1.3. Suspicion can not take the place of a legal proof and prosecution
    would be required to prove each and every circumstance in the chain of
B   circumstances so as to complete the chain. It is cumulative effect of the proved
    circumstances which should be taken into account in determining the guilt
    of the accused. Each one of the circumstance should be proved beyond
    reasonable doubt. The acts or conduct of the parties must be conscious and
    clear enough to infer their concurrence as to the common design and its
C   execution. [506-B, 507-B]

          Noor Mohd v. State of Maharashtra, AIR (1971) SC 885 and State (NCT
    of Delhi) v. Navjot Sandhu @Afsan Guru, JT (2005) 7 SC I, referred to.             ,.

           1.4. The High Court completely missed the fact that immediately after
D   it was noticed that the gold was impure and it could not be converted into
    sheets, A-2 had sent a report to the Board, sought permission of the Board to
    take the gold to Coimbatore. High Court has also failed to notice that shortage
    of pure gold was on account of impurity in the gold bar which was prepared
    when the accused-appellant had not even joined the services of the Board. The
    High Court has also recorded a finding that the bond gold and Nadavaravu
E   (offerings) of gold was handed over to A-3, which was in the form of ornaments
    and coins. The purity of bond gold was ascertained but the purity of the
    Nadavaravu was not ascertained at all and no satisfactory explanation,
    whatsoever, is offered by any witness or the prosecution as to how and why
    was handed over to A-3 and permitted to be used in making the Golaka without
F   ascertaining its purity, as was done in the case of bond gold. The finding of
    the High Court clearly establishes that it was A-3 who was entrusted with
    the entire gold and he was keeping the custody of the same. A-2 had nothing
    to do with it, except he being the Asstt. Commissioner of the Board, he was
    overall incharge of the work along with the other duties which he was
    required to perform in the other shrines, which were coming under his
G   jurisdiction. The High Court has also failed to notice after recording the
    finding, that I Kg. of gold of the Nadavaravu which was mixed up. with pure
    bond gold, the purity was not assessed and it cannot be said with certainty
    that pure gold delivered was 4,499 Kg. to ascertain the loss of pure gold, for
    which the accused persons were charged. It is a matter of common knowledge
H   that ornaments contain and require mixing of other metals in gold, and when
                   K.R. PURUSHOTHAMAN v. STATE OF KERALA                           50 I

   the gold ornaments weighing about 1 Kg. were given, it can safely be assumed           A
   that they contained, along with gold, impurities of other metals, and thus was
   not 1 Kg. of pure gold. 1508-A, B, C, D, E, F, GI

         1.5. On scrutiny of the entire facts led by the prosecution, the charge
  of conspiracy cannot stand as there is no link to show that the conspirators
  agreed to misappropriate the gold while the gold ornament was being prepared.           B
  From the findings arrived at by the High Court that it was A-3 who was
  entrusted with the gold by the Board, and who was looking after the affairs of
  making the ornament Golaka, simply because accused-appellant had
  accompanied him to Coimbatore, it cannot be inferred that there was an
  agreement entered into between them to misappropriate the gold. To constitute           C
  a conspiracy, agreement between two or more persons for doing an illegal
  act, or an act by illegal means, is a Sine qua non. Although the agreement
  among the conspirators can be inferred by necessary implication, the
  inference can only be drawn on the parameters in the manner of proved facts,
  in the nature of circumstantial evidence. Whatever be the incriminating
  circumstance, it must be clearly established by reliable evidence and they must         D
  form the full chain whereby a conclusion about the guilt of the accused can
  be safely drawn. Even if held that at some point of time, the accused-appellant
  had some knowledge or suspicion about A-3 indulging in fraudulent
  misappropriation of gold, entrusted to A-3, in the absence of some positive
  evidence indicating agreement to that effect, conspiracy could not be inferred.         E
                                                         (508-H; 509-A, B, C, DJ

        2.1. To constitute an offence under clause (c) of Section 13(1) of
  Prevention of Corruption Act, 1988 it is necessary for the prosecution to prove
  that the accused has dishonestly or fraudulently misappropriate any property
  entrusted to him or under his control as a public servant or allows any other           F
  person to do so or converts that property for his own use. The entrustment of
  the property or the control of the properfy is a necessary ingredient of Section
  13(l)(c). On the findings arrived at by the High Court, it is obvious that the
  property was neither entrusted nor was under the control of the accused-
  appellant and thus the accused-appellant could not have been convicted under
  the Section. 1508-E, Fl                                                                 G
          2.2. To attract the provisions of Section 13(1)(d) of the Act, public servant
    should obtain for himself or for any other person any valuable thing or
. ; pecuniary advantage by corrupt or illegal means or by abusing his position
    as a public servant. In the present case, there is no evidence on record to
    prove these facts that the accused-appellant had obtained for himself or for          H
    502                          SUPREME COURT REPORTS [20051 SUPP. 4 S.C.R.

A any other person any valuable thing or pecuniary advantage. 1509-G; 510-BI
          3. There is no evidence on record to convict accused-appellant under
    Section 403, 477-A l.P.C. 1510-Cj

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 495 of
B 2004.
           From the Judgment and Order dated 5.2.2004 of the Kera la High Court
    in Crl.A. No. 31 of 1994.

          E.M.S. Anam for the Appellant.
c         Ms. G. Indira and K.R. Sasiprabhu for the Respondent.

          The Judgment of the Court was delivered by

          P.P. NAOLEKAR, J. This appeal has been filed against the common
D judgment of the Kerala High Court where the appeal of appellant (A-2) against
    his conviction was dismissed. A-2 was the Asstt. Commissioner ofTripunithura
    group of the Cochin Devaswom Board and convicted by the common judgment
    passed by the Enquiry Commissioner and Special Judge, Thrissur appointed
    under the Prevention of Corruption Act, 1988 (hereinafter referred to as Act)
    along with A-3 (T.S. Rajan) who was the Devaswom Officer. Chottanikkara
E   Devaswom. The trial court acquitted two other accused persons, A-1 (V.
    Unnikrishna Menon), who was Devaswom Commissioner, Cochin Devaswom
    Board and A-4 (V.G. Purushothaman Achari), the artisan/goldsmith/craftsman,
    who was appointed on 20.7.87 to make the Golaka. All these accused had
    been tried for offences punishable under Sections 13( I)( c) and (d) read with
F   Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 409, 477-
    A arid 120-B of the Indian Penal Code, 1860 (hereinafter l.P.C.) on the allegation
    that they had misappropriated the gold utilized for making a Golaka for
    Mekkavu Bhagavathy of Chottanikkara Temple.

          The appellant was convicted for R.l. for two years and a fine of Rs.
G   I0,000 and R.l. for two years and a fine of Rs. 5000 and in default R.l. for three
    months under Sections 13(1) (c) and (d) of the Act respectively, along with
    Section 13(2) and R.l. of one year under Sections 403 lPC and 477-A l.P.C.,
    each. No separate sentence was awarded under Section 120B of the !PC.

         The prosecution case, in brief, is that Chottanikkara Bhagvathy Temple
H   at Chottanikkara is administered by Cochin Devaswom Board. Ornament
       K.R. PURUSHOTHAMAN v. STATE OF KERALA [NAOLEKAR. J.]              503
 "Golaka" was used in the temple on certain special ceremonial occasions and A
 the other "Golaka" was used day-to-day. The Temple Board found that Golaka,
 which was being used throughout the year, was rendered unfit for adorning
 the deity and, therefore, a division was taken by the Board on 13.4.82 to make
 a new Golaka and for the said purpose, sanction was accorded to use 3 Kg.
and 499 Gm. of gold from the gold stock available with the Devaswom. The B
Devaswom had received back a large quantity of gold, which had been
 invested in gold bonds, from the Government and it was in their custody. Out
of that, aforesaid quantity of gold was to be used for the purposes of making
the ornament. It was subsequently found that 3.499 Kg. was not sufficient
 and, therefore, the Devaswom Board by its order dated 4.9.86 granted permission
 to utilize 1.5 Kg. of gold more from the Nadavaravu (offerings in the form of C
ornaments and gold coins by devotees), by converting them into bars and
sheets. In pursuance of the order, additional quantity of 1 Kg. of gold
consisting of 150 pieces of gold jewellery and coins, was entrusted to A-3,
who died during the pendency of the proceedings. The Board had asked for
the quotations to prepare the ornament and the work was ultimately entrusted
to the 4th accused by the Devaswom Board on 20.7.87. As per the quotation D
the wastage in making the ornament was 10 Gm. of the gold for 1 Kg. By order
dated 20.2.87 (Ex.2b) the work of making the Golaka was directed to be
supervised by the Assistant Commissioner of the Tripunithura group, K.S.
Chakrapani Marar, J.S., D.Cs Office., T.S. Rajan Devaswom Officer, and other
officials. The gold weighing 3.499 Kg., taken from the gold bond, was taken E
to Madras for converting into the gold sheets. The purity was tested at Elite
Jwellery, Thrissur, to be 99 .5%. This gold was converted into gold sheets and
they were cut, and a portion having weight 2.469 Kg. was entrusted to A-3.
The balance of gold sheet, i.e., 1.030 Kg. along with 1 kg. of gold from
offerings (Nadavaravu) was converted into two gold bars. These two bars
were later on converted into gold sheets. The gold sheets were used to make F
different portions of the body of Golaka. After cutting these sheets to the
required size, the pieces left from the sheet, weighing 1.14 7 Kg., and the bits
of gold weighing 13 Gm. were again melted to be converted into gold bars,
weighing 1.149 Kg. This was done before the accused joined as Assistant
Commissioner.                                                                    G
      A-2 joined duty as Asstt. Commissioner of the Devaswom Board on I/
2-5-1988. On 10.9.88 the gold bar was taken by accused - appellant, along
with A-3 and A-4 to A.K.A. Metals at lrinjalakuda for converting the same
into gold sheets. But when the attempt was made to convert the bars into
sheets, cracks appeared on the side of the bar due to impurity of the gold.    H
    504                         SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A   On 15.9.88, the accused-appellant had sent a report to the Board and sought
    pennission to take the gold bar to Coimbatore and vide resolution dated
    20.9.88, the Board authorized A-3 to take the gold bar to Coimbatore for
    converting it into gold sheets and accordingly the gold bar was taken to
    Coimbatore.

B          When the gold bar was melted for converting it into sheets, the quantity
    of pure gold was found to be only 919.500 Gm. of copper was added to it in
    order to confonn the same to the prescribed Government standard, and the
    gold was converted into gold sheets, and these sheets were used for making
    the two hands of the Golaka, wires, pinheads, nails, and for soldering purposes.
C   While making the Golaka the gold was several times melted and converted
    into bars and, thereafter, to sheets. The total weight of the gold utilized for
    making the Golaka was 4.499 Kg. which included the gold supplied from 150
    pieces of ornaments and coins. After completion of the work, it was found
    that the weight of the ornament Golaka was 4.209 kg. Since 42 Gm. of copper
    was used for making the Golaka, the total wastage assessed as 332 Gm. A-
D   I, the Commissioner made certain inquiries about the loss of gold during the
    process of making the ornament Golaka from some dealers at Thrissur, and
    was convinced that there was       a possibility of wastage occurring (a) 50
    Milligrams per 1 Kg. and since the gold had been several times melted and
    converted into bars and sheets, felt that wastage of 332 Gm. was quity
E   reasonable and, accordingly sent a report to the Devaswom Board, which was
    approved and accepted by the Board.

          Later on, the Local Fund Audit, audited the accounts of the Devaswom
    Board and submitted reports before the High Court of Kerala. The first report
    dealt with details of loss of gold sustained, to the illegalities in the work, and
p   it was pointed out that wastage of 332 Gm. of gold was un-reasonable;
    whereas the second report had named the persons responsible for the loss.

          Chargesheet was filed against A I - the Commissioner, Devaswom Board;
    A-2 Ast!. Commissioner, Devaswom Board; A-3 Officer of the Devaswom
    Board; and A-4 the maker of the Golaka. The trial court acquitted A-I and A-
G   4, but convicted A-2 along with A-3, who died during the proceedings.

          The appeal was taken to the High Court by A-2. The High Court, while           .
    considering the case of A-2, recorded a finding that though there was nothing
    which indicated that the accused-appellant was a party to the attempts of
    melting the gold at Chottanikkara and Tripunithura, yet it is possible to
H   conclude that he knew about it. It has been inferred by the High Court that
          K.R. PURUSHOTHAMAN v. STA TE OF KERALA [NAOLEKAR, J.]                    505
... gold when was carried to Irinjalakuda for the purpose of converting the gold          A
    bars into sheets where it was revealed that the gold was impure and it was
    not possible to convert the same into gold sheets, A-2 had not raised any
    objections against the same.

         The High Court has found A-2 guilty only on the basis that he has
   conspired with A-3 dishonestly or fraudulently, to misappropriate the pure             B
   gold.

         The conviction of the appellant is based on the conspiracy which is
   alleged to have been entered into between the appellant and accused No. 3.
   We shall advert to the law of conspiracy, with its definition, the essential           C
   features and required proof.

          Section 120A of I.P.C. defines 'criminal conspiracy.' According to this
   Section when two or more persons agree to do, or cause to be done (i) an
   illegal act, or (ii) an act which is not illegal by illegal means, such a~ agreement
   is designed a criminal conspiracy. In Major EG Barsay v. State of Bombay,              D
   AIR (1961) SC 1762, Subba Rao J., speaking for the Court has said: "The gist
   of the offence is an agreement to break the law. The parties to such an
   agreement will be guilty of criminal conspiracy, though the illegal act agreed
   to be done has not been done. So too, it is not an ingredient of the offence
   that all the parties should agree to do a single illegal act. It may comprise the
   commission of a number of acts."                                                       E
         In State through Superintendent of Police, CBI/SIT v. Nalini and Ors.,
   JT (1999) 4 SC 106 it is observed by SSM Quadri J. at paragraph 677:

           "In reaching the ,stage of meeting of minds, two or more persons share
           information about doing an illegal act or a legal act by illegal means.        F
           This is the first stage where each. is said to have knowledge of a plan
           for committing an illegal act or a· legal act by illegal means. Among
           those sharing the information some or all may form an intention to do
           an illegal act or a legal act by illegal means. Those who do form the
           requisite intention would be parties to the agreement and would be             G
           conspirators but those who drop out cannot be roped in as
           collaborators on the basis of mere knowledge unless they commit acts
           or omissions from which a guilty common intention can be inferred.
           It is not necessary that all the conspirators should participate from the
           inception to the end of the conspiracy; some may join the conspiracy
           after the time when such intention was first entertained by any one            H
    506                         SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A           of them and some others may quit from the conspiracy. All of them
            cannot but be treated as conspirators. Where in pursuance of the
            agreement the conspirators commit offences individually or adopt
            illegal means to do a legal act which has a nexus to the object of
            conspiracy, all of them will be liable for such offences even if some
            of them have not actively participated in the commission of those
B           offences."

         To constitute a conspiracy, meeting of mind of two or more persons for
  doing an illegal act or an act by illegal means is the first and primary condition
  and it is not necessary that all the conspirators must know each and every
C detail of conspiracy. Neither it is necessary that every one of the conspirators
  takes active part in the commission of each and every conspiratorial acts. The
  agreement amongst the conspirators can be inferred by necessary implications.
  In most of the cases, the conspiracies are proved by the circumstantial
  evidence, as the conspiracy is seldom an open affair. The existence of
  conspiracy and its objects are usually deducted from the circumstances of the
D case and the conduct of the accused involved in the conspiracy. While
  appreciating the evidence of the conspiracy, it is incumbent on the Court to
  keep in mind the well-known rule governing circumstantial evidence. viz., each
  and every incriminating circumstance must be clearly established by reliable
  evidence and the circumstances proved must form a chain of events from
E which the only irresistible conclusion about the guilt of the accused can be
  safely drawn, and no other hypothesis against the guilt is possible. The
  criminal conspiracy is an independent offence in Indian Penal Code. The
  unlawful agreement is sine quo 11011 for constituting offence under Indian
  Penal Code and not an accomplishment. Conspiracy consists of the scheme
  or adjustment between two or more persons whi~h may be express or implied
F or partly express and partly implied. Mere knowledge, even discussion, of the
  Plan would not per se constitute conspiracy. The offence of conspiracy shall
  continue till the termination of agreement.

           The suspicion can not take the place of a legal proof and prosecution
    would be required to prove each and every circumstance in the chain of
G   circumstances so as to complete the chain. It is true that in most of the cases,
    it is not possible to prove the agreement between the conspirators by direct
    evidence but the same can be inferred from the circumstances giving rise to
    conclusive or irresistible inference of an agreement between two or more
    persons to commit an offence. It is held in Noor Mohd. v. State of Maharashtra,
H   AIR(l971) SC 885, that:
      K.R. PURUSHOTHAMAN v. STATE OF KERALA [NAOLEKAR. J.]                   507

       " ... in most cases proof of conspiracy is largely inferential though the    A
       inference must be founded on solid facts. Surrounding circumstances
       and antecedent and subsequent conduct. among other factors
       constitute relevant material."

       It is cumulative effect of the proved circumstances which should be
taken into account in determining the guilt of the accused. Of-course, each         B
one of the circumstance should be proved beyond reasonable doubt. The
acts or conduct of the parties must be conscious and clear enough to infer
their concurrence as to the common design and its execution. While speaking
for the Bench it is held by P. Venkaratama Reddy J in State (NCT of Delhi)
v. Navjot Sandhu (a) Afsan Guru, JT (2005) 7 SC I, (P. 63) as follows:              C
       "We do not think that the theory of agency can be extended thus far,
       that is to say, to find all the conspirators guilty of the actual offences
       committed in execution of the common design even if such offences
       were ultimately committed by some of them, without the participation
       of others. We are of the view that those who committed the offences          D
       pursuant to the conspiracy by indulging in various overt acts will be
       individually liable for those offences in addition to being liable for
       criminal conspiracy; but, the non-participant conspirator cannot be
       found guilty of the offence or offences committed by the other
       conspirators. There is hardly any scope for the application of the
       principle of agency in order to find the conspirators guilty of a            E
       substantive offence not committed by them. Criminal offences and
       punishments therefore are governed by statute. The offencer will be
       liable only if he comes within the plain terms of the penal statute.
       Criminal liability for an offence cannot be fastened by way of analogy
       or by extension of a common law principle."
                                                                                    F
      I.Ve shall now proceed to examine the evidence placed on record and
reasoning adopted by the High Court for finding the accused/appellant guilty
of the offence of conspiracy on the basis of the principle laid down by this
Court in various authorities.
                                                                                    G
       The High Court completely missed the fact that on 15.9.88, immediately
after it was noticed that the gold was impure and it could not be converted
into sheets, A-2 had sent a report to the Board, sought permission of the
Board to take the gold to Coimbatore. It can very safely be presumed that
when the gold was required to be taken to Coimbatore, the matter must have
been reported to the Board that the gold was impure and the same was H
    508                        SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A required to be taken to Coimbatore. High Court has also failed to notice that
    when the gold sheet was converted into gold bar, before the accused-appellant
    joined the Board, it weighed 1.149 Kg. and when this gold bar was melted,
    after the accused-appellant had joined duty, the gold was found only to be
    919.500 Gm. Thus, before the accused-appellant joined as Asst. Commissioner,
    there was a shortage of 230 Gm. of the gold in the gold bar prepared, which
B   was detected when it was converted into gold sheet. Shortage of pure gold
    was on account of impurity in the gold bar which was prepared when the
    accused-appellant had not even joined the services of the Board. The High
    Court has also recorded a finding in paragraph 21 onwards of the judgment
    that the bond gold weighing 2.469 Kg. and Nadavaravu (offerings) of 1 Kg.
C   of gold was handed over to A-3, which was in the form of ornaments and
    coins. The purity of bond gold was ascertained and certified in Exh.P. l but
    the purity of the Nadavaravu, was not ascertained at all and no satisfactory
    explanation, whatsoever, is offered by any witness or the prosecution as to
    how and why I Kg. of gold was handed over to A-3 and permitted to be used
    in making the Golaka without ascertaining its purity, as was done· in the case
D   of bond gold. The High Court further held that the entire gold was kept in
    the double locker system under the control of A-3 at Chottanikkara and A-
    3 was keeping both the keys of the double locker with him. There is convincing
    evidence to show that the entire gold was kept in the exclusive custody of
    A-3. A-3 used to release the gold necessary for making of Golaka every
E   morning and used to keep them back by the end of the day and the craftsman
    A-4 was dealing with the gold everyday. The above finding of the High Court
    clearly establishes that it was A-3 who was entrusted with the entire gold and
    he was keeping the custody of the same. A-2 had nothing to do with it, except
    he being the Asstt. Commissioner of the Devaswom Board, Cochin. He was
    overall in-charge of the work carried-on at Chottanikkara, along with the other
F   duties which he was required to perform in the other shrines, which were
    coming under his jurisdiction. The High Court has also failed to notice after
    recording the finding, that I Kg. of gold of the Nadavaravu which was mixed
    up with pure bond gold, the purity was not assessed and it cannot be said
    with certainty that pure gold delivered was 4.499 Kg., to ascertain the loss
G   of pure, gold, for which the accused persons were charged. It is a matter of
    common knowledge that ornaments contain and require mixing of other metals
    in gold, and when the gold ornaments weighing about I Kg. were given, it
    can safely be assumed that they contained, along with gold, impurities of
    other metals, and thus was not 1 Kg. of pure gold.

H         From the findings arrived at by the High Court that it was A-3 who was
       K.R. PURUSHOTHAMAN v. STATE OF KERALA [NAOLEKAR. J.]              509

  entrusted with the gold by the Devaswom Board, and who was looking after A
. the affairs of making the ornament Golaka, simply because accused-appellant
  had accompanied him to Coimbatore, it cannot be inferred that there was an
  agreement entered into between them to misappropriate the gold. To constitute
  a conspiracy, agreement between two or more persons for doing an illegal act,
  or an act by illegal means, is a sine qua non. Although the agreement among
  the conspirators can be inferred by necessary implication, the inference can B
  only be drawn on the parameters in the manner of proved facts, in the nature
  of circumstantial evidence. Whatever be the incriminating circumstance, it
  must be clearly established by reliable evidence and they must form the full
  chain whereby a conclusion about the guilt of the accused can be safely
  drawn. Even if we hold that at some point of time, the accused-appellant had C
  some knowledge or suspicion about A-3 indulging in fraudulent
  misappropriation of gold, entrusted to A-3, in the absence of some positive
  evidence indicating agreement to that effect, conspiracy could not be inferred.
  On the findings itself arrived at by the High Court, we cannot hold that the
  accused-appellant was the conspirator to misappropriate the gold, with A-3.
                                                                                D
      On scrutiny of the entire facts led by the prosecution, the charge of
conspiracy cannot stand as there is no link to show that the conspirators
agreed to misappropriate the gold while the gold ornament was being prepared.

       The accused-appellant was convicted under Sections 13(1)(c) and (d) of
the Prevention of Corruption Act, 1988. To constitute an offence under clause E
(c) of Section 13( I) of the Act, it is necessary for the prosecution to prove
that the accused has dishonestly or fraudulently misappropriated any property
entrusted to him or under his control as a public servant or allows any other
~erson to do so or converts that property for his own use. The entrustment
of the property or the control of the property is a necessary ingredient of f
Section 13(l)(c). On the findings arrived at by the High Court, it is obvious
that the property was neither entrusted nor was under the control of the
accused-appellant and thus the accused-appellant could not have been
convicted under the Section.

      To attract the provisions of Section 13( I)( d) of the Prevention of G
Corruption Act, public servant should obtain for himself or for any other
person any valuable thing or pecuniary advantage by corrupt or illegal means
or by abusing his position as a public servant. Therefore, for convicting a
person under the provisions of Section 13( I)( d) of the Prevention of Corruption
Act 1988, there must be evidence on record that.the accused has obtained H
          510                        SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

      A for himself or for any other person, any valuable thing or pecuniary advantage
          by corrupt or illegal means or by abusing his position as a public servant
          obtained for himself, or for any person, or obtain for any person, any valuable
          thing, or pecuniary advantage without any public interest. What we find in
          the present case is that there is no evidence on record to prove these facts
      B   that the accused-appellant had obtained for himself or for any other person
          any valuable thing or pecuniary advantage. We may clarify that the charge
          of conspiracy being not proved under Section l 20B l.P.C., the accused appellant
          could not be held responsible for the act done by A-3. The prosecution has
          failed to prove that he has obtained for himself or for any other person any
          valuable thing or pecuniary advantage. Similarly, we do not find any evidence
      C   on record to convict accused-appellant under Sections 403, 477-A l.P.C.

               For the reasons aforesaid, the appeal is allowed. The judgment of the
          High Court is set aside.

          K.K.T.                                                        Appeal allowed.

,.,