1

DEFINING INCHOATE CRIME: AN INCOMPLETE ATTEMPT

Moses might have killed him now. His left hand touched the gun .

. . He might have shot Gersbach as he methodically salted the yellow sponge

Rectangle with cleansing powder. There were two bullets in the chamber. . . . But

they would stay there. Herzog clearly recognized that. Very softly he stepped down

from his perch, and passed without sound through the yard again . . . . Firing this

pistol was nothing but a thought .

... .To shoot him!—an absurd thought. As soon as Herzog saw the actual

Person giving an actual bath, the reality of it, the tenderness of such a buffoon to a little

child, his intended violence turned into theater, into something ludicrous. He was

not ready to make such a complete fool of himself.

- SAUL ELLOW, HERZOG 257–58 (Viking Press 1964)

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I. INCHOATE CRIMES
An inchoate crime is one in which the criminal act is prior to the act that unleashes the risk(s) of harm.
In other words, it is a crime that occurs while the actor still has the ability to choose to refrain from
imposing the risk. On that definition, completed attempts and reckless endangerments are not inchoate
crimes . . . .

Inchoate crimes encompass doctrines of attempt, incitement and conspiracy, which share the common
characteristic of making it criminal to participate in the commission of incomplete offences.

 INCHOATE CRIME LAW & LEGAL DEFINITION

Inchoate crimes are incomplete crimes which must be connected to a substantive crime to obtain a
conviction. Examples of inchoate crimes are criminal conspiracy, criminal solicitation, and attempt to
commit a crime, when the crime has not been completed .It refers to the act of preparing for or seeking
to commit another crime. A true inchoate offences occurs when the intended crime does not since the
doctrine of merger prohibits charging both.

Absent a specific law,an inchoate offfences requires that the defendant have the specific intent to
commit the underlying crime. An inchoate crime may be found when the substantive crime failed due to
arrest, impssibility, or an accident preventing the crime from taking place. For example, a person may
be found guilty of the inchoate crime of attempted murder for firing an unloaded gun at someone with
an intent to kill, possession of a listed chemical with intent to manufacture a controlled substance and
possession of a prohibited flask or equipment with intent to manufacture a controlled substance are other
examples of inchoate crimes.

II. GENERAL INTRODUCTION WITH MEANING:

The term ‘inchoate’ means "just begun" or "undeveloped", and is used to refer to situations where,
although a substantial offence has not been committed, the defendant has taken steps to commit it, or
encouraged others to do so Anticipatory, incipient, incomplete, and preliminary crimes are all other
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words for inchoate crimes. The word "inchoate" means underdeveloped or unripened. Because of the
social need to prevent crimes before they occur, the common law long ago established three (3) separate
and distinct categories of inchoate crimes.

1) Attempt

2) Conspiracy, and

3) Solicitation or abetment

The attempt crimes usually done by one person, criminal solicitation and conspiracy generally involve
multiple persons.

Over the years, there have not been any new categories added with the possible exception of possession
(as in possession of burglar tools, bomb materials, gun arsenal, etc.) as an inchoate offence based on the
notion of preparation, which has not normally been associated with inchoate crimes.

Traditionally, inchoate crimes have always been considered misdemeanours, but over the years they
have been merged into felonies as society has put more power in the hands of law enforcement and
prosecutors to deal with recalcitrant problems such as organized crime, white collar crime, and drug
crime.

Traditional rules that exist are:

(1) a person should not be charged with both the inchoate and choate offence, with the exception of
conspiracy which can be a separate charge;

(2) lesser penalties should ideally be imposed for inchoate crimes, but in many cases, the penalty should
be exactly the same as for the completed offense;

(3) inchoate crimes should have specific intent, spelling out clearly what the mens rea elements are; and

(4) some overt action or substantial step should be required in the direction of completing the crime.

This set of rules is sometimes referred to as the doctrine of inchoate crimes. It's best to deal with the
major three inchoate crimes in alphabetical order, if only for the following reason -- attempt is
considered to stand closest to a completed crime, conspiracy is considered to be further removed, and
solicitation is considered the furthest removed.

Intent
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Every inchoate crime or offence must have the mens rea of intent or of recklessness, but most typically
intent. Absent a specific law, an inchoate offense requires that the defendant have the specific intent to
commit the underlying crime. For example, for a defendant to be guilty of the inchoate crime of
solicitation of murder, he or she must have intended for a person to die. Attempt, conspiracy, and
solicitation all require mens rea.

On the other hand, Racketeer Influenced and Corrupt Organizations Act merely requires "knowing", that
is, recklessness. Facilitation also requires "believing", yet another way of saying reckless.

Intent may be distinguished from recklessness and criminal negligence as a higher mens rea.

Proof of intent

Specific intent may be inferred from circumstances. It may be proven by the doctrine of "dangerous
proximity", while the Model Penal Code requires a "substantial step in a course of conduct". etc.

2. List of famous inchoate offences

 Accessory

 Attempt

 Compounding a felony

 Compounding treason

 Conspiracy

 Criminal facilitation

 Misprision

 Misprision of felony

 Misprision of treason

 Racketeer Influenced and Corrupt Organizations Act (RICO)

 Solicitation

 Stalking
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 Mail and wire fraud

 Incitement

III. THE LARGER ISSUE: CONCEPTUALIZING INCHOATE OFFENSES

The interesting thing, or anyway one interesting thing, about the renunciation defense is that it applies
only for the category of inchoate offenses. One cannot, as a legal matter, undo or wipe away one’s
liability for a theft by returning the stolen item, even if one does so before anyone realizes it has gone
missing. Such post- theft restitution of the stolen property might influence a prosecutor to exercise
discretion and forgo bringing a case, or might be a basis (formalized or not) for mitigating the offender’s
sentence, but it does not create a full and outright defense to liability, as renunciation does for attempt
and other inchoate offenses, such as conspiracy.

This category of inchoate crime is significant both doctrinally and conceptually. Doctrinally, in
addition to the renunciation defense unique to inchoate offenses, there are limitations on the availability
of multiple-offense liability for such crimes: modern codes generally prohibit imposition of liability for
two distinct inchoate crimes (such as attempt and conspiracy) toward the same target offense, and also
prohibit imposition of liability for both an inchoate crime and the target offense of that crime. While
these doctrinal rules need not depend on, or track, an offense’s formal status as “inchoate” or not, the
legitimacy of their rationale depends on identifying some underlying and coherent trait(s) defining the
set of crimes to which they should and should not apply. Otherwise it is unclear why some crimes, for
example, receive a renunciation defense while others do not. Developing a definition of inchoate crime
is also practically important because of the increasing tendency of modern criminal codes to define both
(1) general “inchoate” offenses (such as attempt and conspiracy), which potentially apply to preparatory
efforts toward any specific offense; and (2) particular substantive offenses that also seem “inchoate” in
that they do not demand any concrete harm (or wrong), but involve only the potential for such harm or
preliminary conduct in the direction of bringing about such harm. This creates the possibility of liability
for an inchoate offense toward another offense that is itself also inchoate. Such doubly inchoate liability
may allow the criminal law to extend further and further beyond the actual harms or wrongs it is meant
to address. Clearer understanding of the category would enable identification of whether a given
ostensibly substantive crime is properly seen as inchoate (and therefore probably should not be eligible
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as a basis for attempt or conspiracy liability).

As a broader theoretical matter, the scope of inchoate offenses is significant because such offenses mark
the limits of the State’s criminalization authority.
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Accordingly, an important issue with inchoate liability lies in determining its exact object or scope: if
such liability demands no harm or wrong, precisely what does it demand? Given its importance, the task
of defining the exact contours of this category has received surprisingly little attention. Scholars
typically define or categorize inchoate crimes only in the negative, as crimes that are not consummate,

and even this distinction is unexplained. What is needed instead is an affirmative account of the
inchoate category—not merely a “definition,” as if the category has some independent existence and
meaning waiting to be ascertained and described, but rather a conceptual framework to support the
claim or intuition that recognizing this category is useful, i.e., that (understood properly) it can advance
our understanding of how criminal law works or should work. The two existing accounts of the proper
scope of the category take the position that inchoate crimes are characterized by either (1) the creation of
a sufficiently significant risk of harm, even though harm itself need not occur, or (2) the offender’s
intent that a prohibited harm or wrong should occur.

In earlier work, I opposed the intent-based view of inchoate crimes, implying some support for (but
expressing no firm opinion as to) the risk-based view. This symposium provides an opportunity to
refine my views somewhat. I continue to think that criminalization of risk-creation is appropriate, but I
think risk-creation falls within the first category of criminalizable conduct; it is justified by the state’s
interest in preventing harms, which is expansive enough to merit prohibition of act-types that are likely
to cause harm even if specific instances of those act-types cause no harm.

I also continue to reject the position that inchoate crimes are rooted in the offender’s intent in the usual
sense, though I do think the essential nature of inchoate crimes relates in large part to the offender’s
mental state, rather than the objective risk they involve. In my view, inchoate offenses punish based on
a specific kind of culpability: not the offender’s culpability as to the elements of the crime, but his
culpability as to the performance of conduct that will satisfy the elements of the crime.For example, with
murder, the key question is not (only) whether the actor desires the death of the victim, but whether he is
committed to a course of conduct that would, if completed, bring about the death of the victim. Inchoate
offenses demand not only proof of the purpose or intent that the offense’s requirements should come to
pass, but also proof of the actor’s resolve—his dedication to ensuring that the offense will come to pass,
by his hand or with his active support. It is this particular form of culpability, demonstrating both the
actor’s dangerousness and his ill-desert, that justifies punishing conduct that does not itself generate the
harm, wrong, or risk demanded for substantive liability.

On this account, the category of inchoate crimes is defined by two features: (1) incomplete conduct
toward some ultimate offense (this is what makes the crime inchoate, rather than consummate); and (2)
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the actor’s firm commitment to the performance of the as-yet-unperformed conduct that would complete
that offense (this is what makes the conduct worthy of punishment at all, rather than “mere thoughts” or
“mere preparation”)

IV. CRIMINAL ATTEMPT : INTRODUCTON

Affectus punitur licet non sequatur effectus –

The intention is punished although the consequences do not follow.

Everyone seems to agree that it would be a perversion of the institution of punishment to convict for
thoughts alone.

-George Fletcher

La Fave & Scott say

" The crime of attempt ... consists of (1) an intent to do an act or to bring about certain consequences
which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is
most commonly put, goes beyond mere preparation."

-Criminal Law, West (2nd ed 1986).

Policy Issues Surrounding Attempt Crime: Attempt law poses two philosophical problems.

First, why punish attempts at all? Is it because the conduct of the accused is dangerous, even though no
harm was inflicted on the target?

Second, why punish the attempt to commit a target crime with less severity than successful completion
of the target crime?

At common law, attempt came into being in the late 1700's. At that time criminal attempts were called as
misdemeanours. Now-a-days criminal attempt is trying to commit a crime and failing. This is often seen
as the most serious inchoate crime because the person may have came close to completing the crime. For
example, a person that shoots to kill another but misses may be charged with attempted murder. If his
aim was better and he succeeded, the charge would be murder.

 Criminal attempt has three main elements:

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i) Specific intent: A criminal attempt charge requires a person to have had specific intent (mens rea) to
commit the actual crime. If, the crime, almost happened by accident, it's not attempt. For example, a
hunter who almost shoots another person must have intended to kill for it to be attempted murder.

ii) Actions to commit the crime: Actions close and connected to the crime are also required. It can't be
just acts that prepare for the crime. For example, if you buy a gun, thinking about a bank robbery in a
few months, your acts are probably too far removed from the actual crime to amount to attempted
robbery. However, if you drove to a bank to rob it and you're arrested before leaving the car, you've
gone far enough to commit attempted robbery. There are at least four tests used in various places:

 physical proximity doctrine -- this focuses upon space and time, establishes the "last act"
standard which requires looking at the remaining steps

 probable desistance approach -- this considers whether the attempt would naturally lead to
commission but for some timely interference not related to bad luck

 equivocality approach -- this looks at whether the attempt can have no other purpose than
commission of a crime

 substantial steps test -- this is a looks for corroborating evidence in the form of conduct which
tends to concur or verify a criminal purpose

iii) Failure to commit the crime: Failing to commit the crime is the last element. On crossing over
these reasons, the crime is done, person will be charged with the actual crime, and not with attempt.
They are:

 legal impossibility -- a defence that what was attempted is not a crime (raping a mannequin, for
example, because rape requires a human victim) Prosecutors have the burden of proving legal possibility
as well as apparent ability

i. factual impossibility -- a defence that some extraneous factor or outside force made it
impossible to complete the crime; most jurisdictions will not accept this on the presumption that "luck"
doesn't count (same as no defence)

ii. renunciation -- this is the idea of abandonment, and to be a successful defence, the actor must
have given up for moral reasons, not just because of the risk of apprehension.

V. THE LAW OF ATTEMPTS AND THE SHIFTING BASIS OF CRIMINAL LAW IN

MODEM SOCIETY
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"His act did not o'ertake his bad intent, And must be buried but as an
intent That perish'd by the way: thoughts are no subjects;Intents but merely thought.”

-Shakespeare, Measure for Measure, Act V Scene (i)

 INTRODUCTION

In England, inchoate crimes are incitement, conspiracy and attempt. The advantage of inchoate offences
lies in the fact that they enable intervention at a'point of time, before any actual harm had been caused.
However, especially for attempt, such intervention is proper and legitimate only when the accused had
moved from mere planning to the state of performing overt acts, which manifest his intention that a
particular substantive offence be committed hension than any other branch of criminal law”.

Criminal law in modern society has been assigned a new role. It is no longer an instrument for the
punishingof tine wicked, butadevice for enforcing standards of conduct. The evolution of crimes of
negligence and strict-iiability offences is indicative of the shifting basis of criminal law.

In it's new character, the criminal law does not seek to punish evil thoughts alone. Mere contemplation
of an offence does not entail criminal liability. However, if the individual couples his criminal intent
with conduct manifesting such intent, he may commit an inchoate crime. 2 The reason being that
although no injury may have been caused, yet his actions may be sufficiently harmful to society because
of it's close proximity to the contemplated offence.

The law relating to criminal attempts has been described as "more intricate and difficult of
compre'Inchoate' means just began or undeveloped'. problems confronted in a study of criminal attempts
are:

(a) The problem of impossible attempts,

(b) The nature of the intention required for a criminal attempt,

(c) The identification of a stage in criminal conduct at which the accused becomes liable for an
attempt, and

(d) The relative severity of punishment for attempts and for the corresponding completed crimes.

The object of this paper is to suggest certain new parameters and criteria in respects of fastening
liability for 'attempts', which would allow for better appreciation of the shifting basis of the
criminal law.
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 ATTEMPTS IN THE SCHEME OF THE IPC

The requisite actu sreus for criminal attempts necessitates that the act done must be "more than merely
preparatory" to the commission of the offence, the accused intends to commit. Hence, preparation is not
generally punishable except in cases, where the substantial offence attempted is of an extremely grave
nature with serious consequences. or, where the character of the offence attempted precludes the
assumption of the accused being innocent, even in the preparatory stages

As such the code deals with attempts in three ways:-

a. where the commission of the offence and attempt to commit it are in the same section, thus
prescribing the same punishment
b. where attempts are dealt side by side with the offences themselves, but separately- hence
entailing separate punishments are siduary and
c. general provision, i.e. S. 511.

One of the reasons for the confusion arising in the law of attempts is due to the difficulty faced in
defining "(Criminal) attempt", The Penal code avoids a definition, thereby sacrificing the criminal
law’s doctrinal ideals of clarity and certainty The Law commission, however, in it's 42nd report
recommended as follows :-

i. S. 511 may be omitted

ii. A new chapter V B entitled "attempts" consisting of two sections, viz. S. 120C and S. 120 D
be inserted after chapter V A.

iii. In view of the definition suggested by the Law Commission, Ss. 307 and 308 be amended.

iv. S. 120 C : Attempt, defined:

A person attempts to commit an offence punishable by this code when-

 he, with the intention or knowledge requisite for committing it, does an act towards it's
commission,

 the act so done is closely connected with, and proximate to the commission of the offence
 the act fails in it's object because of facts, not known to him or because of circumstances beyond
his control

S. 120 D: Punishment for attempt

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 Impossible Attempts
An impossible attempt is defined as an attempt, where the means chosen cannot bring the end
sought without a violation of causal laws. There are 3 cases of impossibility:-

a. Physical impossibility- A case where a pickpocket puts his hand into an empty pocket of another
with intent to steal
b. Impossibility arising from inadequacy of means- where, say, the accused tries to kill the intended
victim with an insufficient dose of poison, which unknown to him, cannot obviously effect his purpose

c. Legal impossibility- A case where the accused attempts to handle stolen goods, which
unknown to him, are not stolen. Prior to 1981, in England, the accused was punishable only in
cases of means.

The a rgument put forth to justify such a stance was that in such cases the crime was not 'really'
impossible, because it could have been committed by adequate means. However S. 1(2) of the
Criminal Attempts Act, 1981 altered the above position and renders a person liable to conviction
regardless of the category of impossibility.

Considering the shifting basis of criminal law, two issues may be addressed

(1) Does the category of" impossible attempts", warrant a systematically

different treatment from other attempts?

(2) If yes, can we find a useful demarcation line to set off impossible attempts

from other attempts?

If the object of criminal law today is to prevent acts which are socially harmful in some way;
Simplistically it would appear erroneous to punish attempts that could not possibly succeed. For
example, a black magician, although he believes he can, actually produces no harmful consequences. It
would be more appropriate todeter such practice by anuisance legislation than hold the magician
criminally liable for attempted murder.

Thus, social harm being the indicator, the accused must be criminally responsible for only those
consequences of his acts which are within the area of risk, created by that act. But, it would seem
morally objectionable if we were to acquit the pickpocket, who thrust his hand into an empty pocket,
just because there was no risk involved.

The demarcating line is drawn by defining that an attempt is impossible, if a reasonable man would
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know that the means chosen was ineffective. This rule may thus convict the pickpocket, and acquit
the black magician. Therefore, though impossibility by itself does not entitle the accused, to
acquittal- the import of the concept of 'reasonableness' to define impossibility lays the onuson the
courts for determiningin the light of all the circumstances of the case, whether impossibility is
grounds for acquittal, mitigation or is no excuse at all.

Then, there is the exceptional case of the accused being aware of the impossibility unlike most cases of
"impossible attempts", where he is ignorant of the particular factor rendering his attempt impossible. For
example, the accused fires his gun at his intended victim hoping to kill him even though he (rightly)
suspects that he is out of range. The contemplated result is similar to the person who tries firing at his
victim without knowing ’that the live bullets in his gun have been replaced by d uds'. However, in the
former case, the accused is less of a danger to society because he is not determined enough to choose a
suitable means for effceting his object. Marlin.remarking on the psychology of the accused states. that a
criminal intent once formed, is not easy to be carried out by persons who have a normal moral outlook.
Many forces operate within the mind to stop the accused from carrying out the crime. One result of such
conflicts is that the intention takes a form of lacking all chance of success. Thus, some credit may be due
to the good character of the accused for choosing insufficient means.

Hence although unreasonable mistaken belief is not sufficient to exonerate a person from criminal
attempt, the unreasonableness of the mistaken belief may be evidence that the person is not a
sufficient danger to society.

The case of legal impossibility must be distinguished from the exceptional case of imaginary crime.
Courts have opined that an accused cannot be convicted of attempting to commit a crime that does
not exist for it would be wrong to use the law of attempts to extend the number of criminal
prohibitions. 14 Thus, in Taafeis, the House of Lords, acquitted the accused who believed that he was
importing foreign currency into the U.K. in breach of the law, when in fact there was no such law.
But did not the accused demonstrate that although he knew or, believed that he legally ought not to
have done what he did, he was prepared to defy the law in order to pursue his selfish motives?
Ought not the criminal law try and control such a potentially dangerous mind- the seed of socially
harmful acts?

 The Intent for Attempt

The nature of criminal attempt facilitates the mental element assuming paramount import&nce in
attempts. Unlike S. 511 of the IPC, S. I (1) of the criminal Attempts Act, 1981 requires that for the
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accused to be guilty of attempt, he must 'intend to commit the offence'16. S. 511 on the other hand merely
insists upon an 'attempt to commit an offence punishable by the IPC'.

Traditional notions of criminal law hold that the law must not inflict sanctions upon unintended acts for
its ultimate purpose is deterrence and one is deterred only by an appreciation of the acts which are
proscribed17. Modern Criminology does not subscribe to such a policy. It seems justified therefore that
the criminal law should punish voluntary unintended acts with dangerous punish voluntary unintended
acts with dangerous consequences, so that persons may conform to recognized standards of conduct.

The law condemns negligence and recklessness, and even imposes a duty on persons to take special care
to avoid penalty - thanks to strict liability offences.

It is argued therefore that liability for negligence and strict liability offences must be extended to the law
of attempts because the only difference between the attemptor and the person who commits the said
offence without mensrea is "chance". Thus, as in S. 511, we ought to draw a strict parallel between the
offence attempted and the offence itsel f so that the accused need know (or, not know) no more facts
than that he would be required to know (or, not know) for the conviction of the completed offence.
However, the courts may be faced with the difficulty in determining the likelihood with which a certain
harm would have followed from the accused's action given that no specific intention is required as such
in strict liability offences.

 The Required Act (s) for Attempt

In State v. Mohd, Yakub Sarkaria J.'s observations recognize this new role of criminal law. Thus,
attempts concerning offences likely to affect the national economy such as smuggling, evasion of
foreign exchange, corruption, etc., are treated as a special class mandating broader interpretation
because of the greater component of social harm involved in these offences.

Legal systems the world over, criminalise attempts by identifying a point on the spectrunYbetween
preparation and consummation to define the threshold of criminality. Usually such a point is
proximate to the consummation of the offence where theaccused has more than prepared
forcommitting it. The purpose of such an exercise to locate the stage defining criminality, is to
strike a balance between the common law maxim "actus non facitreum nisi mens sit rea" and the
advantage of inchoate crimes enabling arrest and prosecution, beofre the offence is actually
committed.
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In order to resolve this conflict between the concern for public safety and the certainty that an
actor's purpose is firmly fixed before imposing criminal sanctions, the Model Penal Code defines
attempt as 'an act or, an omission constituting a substantial step in a course of conduct planned to
culminate in a crime'.

Various theories have developed to recognize the appropriate nctusreus'of attempt: the

last proximate act, physical proximate theory dangerous proximity theory abnormal step theory,res
ipsa loquitur theory, amongst others S. 511 o f the IPC, by including the phrase, "a nd in such
attemptdoesanyact towards the commission of the offence" subscribes to the definition given by the
Model Penal Code, rather than the last proximate act' theory. The latter is not the best test of
liability essentially because inspontaneous crimes, an accused may be very proximate to
completion and still be likely to break off; while on the other hand, in the case of planned crimes,
completion of a crime may be certain, unless interrupted, although the criminal is less proximate to
it.

To interpret S. 511 on lines of the Model Penal Code, it is submitted that to determine what constitutes a
substantial step, it would be more appropriate to apply a liability test of commitment rather than
proximity. This would involve consideration of a number of factors like dangerousness of the act,
attitude of the accused, degree of planning involved, expenditure of effort, etc.

 Punishment for Attempts

In sections 307,308,393 and 511 of the IPC, the law does not prescribe equal penalties for attempts
and for the consonance with the new reasoning in criminal law?

According to the Italian School, an attempt to commit a crime "ought to be considered the sambas
the crime itself when the danger arising from the act of the last proximate act theory, insofar as
each case is decided on its facts with detailed examination made to determine the proximate
relationship of the act constituting the attempt to the completed crime. Actor's conduct is examined
in terms of time, distance, the number of acts remaining to be done and the actors independent
ability to complete the crime. delinquent is as great", as a thing which occurs when his plan was
well put together, but was not carried out simply and because of unforeseen obstacles, "independent
of the will". The latter phrase thus excludes the half-hearted attemptor whom we have seen earlier
and deserves a lesser punishment, owing to his good character.
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Utilitarian arguments on reform evidently warrant equal treatment for attempts and for
completions. But,why inflict punishment if no one was harmed? It is because criminal law today is
concerned with social interest at large. Thus, prescription of equal penalties would truly reflect that
the purpose of the law today is not merely striking at completed crimes, which is of interest
primarily to the victim and hisfamily, but to strikeat the psychological source of other possible
future crimes.

VI. CRIMINAL CONSPIRACY

Alone we can do so little, together we can do so much

- Helen keller

There is strength in the union of very sorry men: "conspiracy, that darling of the modern
prosecutor's nursery.”
Homer, The Iliad

According to The Free Dictionary ,Conspiracy means,

“An agreement between two or more persons to engage jointly in an unlawful or criminal act, or an
act that is innocent in itself but becomes unlawful when done by the combination of actors.”

A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then
take some action toward its completion. The action taken need not itself be a crime, but it must indicate
that those involved in the conspiracy knew of the plan and intended to break the law. One person may be
charged with and convicted of both conspiracy and the underlying crime based on the same
circumstances.

For example, Andy, Dan, and Alice plan a bank robbery. They

1) visit the bank first to assess security,

2) pool their money and buy a gun together, and

3) write a demand letter. All three can be charged with conspiracy to commit robbery, regardless of
whether the robbery itself is actually attempted or completed.
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What is Criminal Conspiracy?

Conspiracy is the term for a broad category of crimes involving multiple actors coming together to
engage in criminal activity. Specific federal anti-conspiracy statutes are found throughout federal law.
State statutes also contain anti-conspiracy laws.  Criminal conspiracy is a felony, even when the crime
planned and carried out is a misdemeanor.

In recent years, a growing number of white collar criminal prosecutions have included allegations of
conspiracy. A person or business generally is guilty of conspiracy to commit a crime if that person or
business does one of the following:

 with the purpose of facilitating or promoting its commission, agrees with another person or
business to engage in conduct that constitutes a crime or an attempt or solicitation of a crime; or

 agrees to aid another person or business in planning, committing, or attempting to solicit a crime.

In criminal law, a conspiracy is an agreement between two or more persons to commit a crime at some
time in the future. Criminal law in some countries or for some conspiracies may require that at least one
overt act must also have been undertaken in furtherance of that agreement, to constitute an offense.
There is no limit on the number participating in the conspiracy and, in most countries, no requirement
that any steps have been taken to put the plan into effect (compare attempts which require proximity to
the full offence). For the purposes of concurrence, the actus reus is a continuing one and parties may
join the plot later and incur joint liability and conspiracy can be charged where the co-conspirators have
been acquitted or cannot be traced. Finally, repentance by one or more parties does not affect liability .

CRIMINAL CONSPIRACY UNDER IPC

Section 120A in The Indian Penal Code, 1860

120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be
done,-

(1) an illegal act, or

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(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such agreement in
pursuance thereof. Explanation.- It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.

Section 120B in The Indian Penal Code, 1860

120B. Punishment of criminal conspiracy.--

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
2[ imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no
express provision is made in this Code for the punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.] may reduce their sentence.

CONSPIRACY UNDER COMMON LAW

Judge Learned Hand: Harrison v. United States, 7 F.2d 259, 263 (2nd Cir. 1925)

Looking back for a brief glimpse of the history of conspiracy in the common law , we discover that there
was no conspiracy crime in early common law. It wasn't until 1611 that the English judges allowed the
prosecution of an agreement to commit an offence. In the Poulterer's Case, the English court held that
an agreement to falsely accuse an innocent party of a crime could be punished even though the objective
of the agreement was not achieved. In 1832, the English case of Rex v. Jones broadened the definition of
conspiracy so that "conspiracy could have as its purpose either to do an unlawful act or a lawful act by
unlawful means."

Policy Issues - The purpose of the crime of conspiracy like other inchoate offenses is to allow society
through the organized government to intervene against persons who have sufficiently displayed their
proclivity or propensity to engage in criminality. The conspiracy crime also serves as means for
proceeding against those who are inclined to band together to engage in group criminality. Indeed, the
willingness to agree with others to engage in crime is a key element of conspiracy. The danger in having
conspiracy to commit a target crime, as an offence, is that it is often a crime of words. For that reason,
19

some jurisdictions may require the existence of an overt act in furtherance of the conspiratorial purpose
as a further manifestation that the agreement is real.

Criminal conspiracy is when two or more people agree to commit a crime. This crime is used to charge
multiple people planning or doing illegal activities. Conspiracy is different because one can be charged
with the actual crime and the conspiracy to commit it. For example, if one plans with others to kill
someone, the one can be charged with murder and conspiracy to commit murder.

7. Criminal conspiracy main elements are:

 Two or more people

 Agreement to commit a crime: The essence of conspiracy is an agreement. It doesn't have to be a
written one. Usually, it's inferred from the facts or circumstances. Because a conspiracy by itself is
almost treated as a substantive crime in itself, this is the only inchoate offence that the law permits a
person to be charged with in addition to the target crime (that is, a person can be charged with both
murder and conspiracy to commit murder, e.g.).

Conspiracy is the favourite tool of prosecutors. There are a lot of presumptions and procedural rules that
favour the prosecution. It's easy to get a conviction for conspiracy because, basically, all the prosecutor
has to do is present all the evidence and let the judge tell the jury what test will be used to determine
whether an agreement existed.

 An overt or open act to carry out the plan One can't be charged with conspiracy unless someone
else agrees to commit the crime.

In most jurisdictions, proof of the agreement is sufficient; no further (overt) act is required. In
jurisdictions requiring an overt act, the standard is not as high as the law of attempt, and is basically
proven by showing at least one of the conspirators had at least the intent to commit a substantive
offense. Conspiracy is still a specific intent crime, so "purposively" must be used, not just knowledge,
although there's a whole string of inconsistent case law that indicates erosion in this area.

The elements of conspiracy include:

(1) mens rea -- a specific intent to attain a particular criminal objective on the part of at least one person
in the partnership. Purpose can be inferred from circumstances surrounding the combination, such as
failure to keep records, clandestine meetings, quantities involved, continuity of the relationship, etc.
There are different rules used by different jurisdictions on the kinds of relationships that qualify:

 unilateral rule -- the idea that among a group of conspirators, there is at least one individual
with criminal intent
20

 bilateral rule -- the idea that one cannot conspire alone; at least two guilty persons are required

 wharton's rule -- the idea that because conspiracy charges imply a danger to society, there must
be more (>2) partners than the minimum number required to commit the crime (a third party must be
involved), so therefore, conspiracy to commit adultery, bigamy, and incest will require 3 people

(2) actus reus -- proof of an agreement is proof of the actus reus for conspiracy. Proof of an unwritten
understanding will suffice. Most agreements are of two types, and the judge is obligated to instruct the
jury how to determine the types:

 chain conspiracy -- this usually involves the distribution of something, like drugs, where each
person in the conspiracy handles the commodity at different points in the process, like with the stages of
manufacture, distribution, and sale

 wheel conspiracy -- this is where a hardcore group of participants ("middlemen") handle most of
the transactions, like a hub, protecting those at the top and those at the bottom (the spokes) by only
allowing them to participate is some of the transactions

8. Defences and Other Issues:

Police officers cannot initiate a conspiracy -- that would automatically be entrapment. They can,
however, give somebody an opportunity to enter into an existing conspiracy where the police agent is a
feigned accomplice. The defences of impossibility and abandonment are of no use in conspiracy law as
they are considered the same as no defence. However, some jurisdictions will permit abandonment, but
the standard is high, the defendant has to show their complete and total withdrawal by notifying the
authorities about their own involvement and taking steps to thwart the conspiracy. Conspiracy doesn't
recognize anything sacrosanct about the husband-wife relationship, and a corporation can also be
charged as a person with conspiracy if more than one corporation is involved.

Statutory Conspiracy

Section 1(1) of the Criminal Law Act 1977 creates and defines the offence of statutory conspiracy. This
offence is triable only on indictment, even if the parties agreed to commit a criminal offence triable only
summarily. It is not limited to agreements to commit a statutory crime (agreements to commit the
common law offence of murder are charged under this offence).
21

Conspiracy to Commit Offences outside England and Wales

A conspiracy may involve the doing of an act by one or more of the parties, or the happening of an
event, in a place outside England and Wales which constitutes an offence in that other jurisdiction. This
situation is covered by section 1A of the Criminal Law Act 1977.

Evidential Considerations

The rule that acts and statements of one party to a common purpose may be evidence against the other is
particularly relevant to evidential considerations for those charged with conspiracy.

This rule permits the actions and admissions of one party, A, to be used in evidence against the other, B.
It is thus an exception to the general rule that B is not to be prejudiced by the acts or statements of
another.

In order for the acts or statements of A to be admissible against B, this rule requires:

 that the act or statement of A must be in the course and furtherance of the common purpose; and

 there must be evidence adduced of the existence of the conspiracy and the involvement of both A
and B.

Evidence relating to acts or statements by A that were not in furtherance of the common purpose is not
admissible against B simply because they have been charged with conspiracy. Similarly, a confession
after arrest by A, in which s/he implicates B, is only evidence against A as the common purpose has
finished.

9. Conspiracy forms:
 Statutory conspiracy consists of an agreement between two or more people to commit a
criminal offence.

 Common law conspiracies, on the other hand, fall into two categories;

a) "conspiracy to defraud" : The standard definition of a conspiracy to defraud was provided by

Lord Dilhorne in Scott v Metropolitan Police Commissioner, when he said that

it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something
which is his or to which he is or would be entitled and an agreement by two or more by dishonesty to
injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud, and
22

b) "conspiracy to corrupt public morals": Conspiracy to "corrupt public morals" has no definitive
case law; it is unknown whether or not it is a substantive offence, and Herring sees it as unlikely that
conspirators will be prosecuted for this offence.

 A third category which existed at the time of the 1977 Act, "conspiracy to outrage public
decency", has now become a statutory offence. Indeed, corrupting public morals may have become a
statutory offence; the situation is unclear.

10. Tit-bits of criminal conspiracy:

Merger doctrine

The doctrine of merger has been abandoned in many jurisdictions in cases involving a conspiracy,
allowing an accused to be convicted of both conspiracy and the principal offence. However, an accused
cannot be convicted of either attempt or solicitation and the principal offense.

Renunciation as a Defence to Criminal Conspiracy - At common law, renunciation was not a defence
to conspiracy.

Withdrawal Before Target Offence is Committed as a Barrier to Liability for Target Offence - A
different issue, one that may be mistakenly confused with renunciation of the target inchoate offense, is
the effect of voluntary withdrawal (some may call it "abandonment") from a conspiracy before its
completion on one's liability for the completed target offense. Concerning the inchoate offense of
conspiracy, renunciation is no defence. There are two different traditional ways under the general law to
withdraw from or withdraw from liability for the substantive offense so as not to be liable for the target
substantive offense, namely, (1) cease all activity in furtherance of the conspiracy to commit the target
offense and notify the other co-conspirators of one's intent to abandon so that they can consider doing
likewise and (in some jurisdictions) nullify your contribution to the conspiracy, e.g., "Sorry group, but
you cannot use my gun for the robbery," or (2) cease all activity in furtherance of the conspiracy and
timely notify the police or make some effort, albeit unsuccessful, to prevent the commission of the
planned substantive target offense.

Wharton's Rule - The common law Wharton's Rule regarding liability for conspiracy is as follows: "
When to the idea of an offense plurality is logically necessary - conspiracy, which assumes that
voluntary accession of a person to a crime of such nature that it is aggravated by a plurality of agents,
cannot be maintained." The idea is that a criminal conspiracy conviction is not possible when the target
offense is substantive crimes such as bigamy, incest, fornication; adultery and duelling that by definition
require two actors. Hence, if two actors are needed for the commission of the substantive offense, three
23

conspirators are necessary for a conspiracy to commit it. The punishment for these substantive offenses
that require two actors already factors in plurality, and, therefore, the argument goes, it is not appropriate
to add a conspiracy penalty based on the rationale of group danger. So if A and B, each married to
someone else, agree to rent a hotel room so they can spend the night engaging in sexual intercourse, they
cannot be convicted of conspiracy to commit adultery, assuming that the jurisdiction recognizes adultery
as a crime.

Other Considerations Re Conspiracy Prosecutions - Joinder of Conspirators: The principle that allows
joinder of all conspirators in one trial offers obvious advantages to the prosecution. Time and resources
are saved, discovery is limited, and the prosecution is allowed to show the whole picture. There are
obvious disadvantages to the accused: the jury may become confused about the role the defendant
played; it is hard for defence lawyers with different clients to work together when they can't present a
unified front; and the jury may convict based on guilt by association.

Severance of Co-conspirators: Severance involves granting co-conspirators separate trials from one
another, severance is permitted in the trial court's discretion if the defendant or government is prejudiced
by the joinder.

CONSPIRACY UNDER UNITED STATES

Conspiracy has been defined in the US as an agreement of two or more people to commit a crime, or to
accomplish a legal end through illegal actions. For example, planning to rob a bank (an illegal act) to
raise money for charity (a legal end) remains a criminal conspiracy because the parties agreed to use
illegal means to accomplish the end goal. A conspiracy does not need to have been planned in secret to
meet the definition of the crime. One legal dictionary, law.com, provides this useful example on the
application of conspiracy law to an everyday sales transaction tainted by corruption. It shows how the
law can handle both the criminal and the civil need for justice.

[A] scheme by a group of salesmen to sell used automobiles as new, could be prosecuted as a crime of
fraud and conspiracy, and also allow a purchaser of an auto to sue for damages [in civil court] for the
fraud and conspiracy.

Conspiracy law usually does not require proof of specific intent by the defendants to injure any specific
person to establish an illegal agreement. Instead, usually the law only requires the conspirators have
24

agreed to engage in a certain illegal act. This is sometimes described as a "general intent" to violate the
law.

Under most U.S. laws, for a person to be convicted of conspiracy not only must he or she agree to
commit a crime, but at least one of the conspirators must commit an overt act (the actus reus) in
furtherance of the crime. However, in United States v. Shabani the U.S. Supreme Court ruled that this
"overt act" element is not required under the federal drug conspiracy statute, 21 U.S.C. section 846.

The conspirators can be guilty even if they do not know the identity of the other members of the
conspiracy. See United States v. Monroe, 73 F.3d 129 (7th Cir. 1995), aff'd., 124 F.3d 206 (7th Cir.
1997).

California criminal law is somewhat representative of other jurisdictions. A punishable conspiracy exists
when at least two people form an agreement to commit a crime, and at least one of them does some act
in furtherance to committing the crime. Each person is punishable in the same manner and to the same
extent as is provided for the punishment of the crime itself. [2]

One example of this is The Han Twins Murder Conspiracy case, where one twin sister attempted to
hire two youths to have her twin sister killed.

One important feature of a conspiracy charge is that it relieves prosecutors of the need to prove the
particular roles of conspirators. If two persons plot to kill another (and this can be proven), and the
victim is indeed killed as a result of the actions of either conspirator, it is not necessary to prove with
specificity which of the conspirators actually pulled the trigger. (Otherwise, both conspirators could
conceivably handle the gun—leaving two sets of fingerprints—and then demand acquittals for both,
based on the fact that the prosecutor would be unable to prove beyond a reasonable doubt, which of the
two conspirators was the triggerman). A conspiracy conviction requires proof that a) the conspirators did
indeed conspire to commit the crime, and b) the crime was committed by an individual involved in the
conspiracy. Proof of which individual it was is usually not necessary.

It is also an option for prosecutors, when bringing conspiracy charges, to decline to indict all members
of the conspiracy (though their existence may be mentioned in an indictment). Such unindicted co-
conspirators are commonly found when the identities or whereabouts of members of a conspiracy are
unknown; or when the prosecution is only concerned with a particular individual among the
conspirators. This is common when the target of the indictment is an elected official or an organized
crime leader; and the co-conspirators are persons of little or no public importance. More famously,
President Richard Nixon was named as an unindicted co-conspirator by the Watergate special
prosecutor, in an event leading up to his eventual resignation.
 25

VII. CRIMINAL SOLICITATION/ ABATEMENT UNDER COMMON

LAW
The English common law recognized Solicitation in 1801 and the least of the common law inchoate
offenses. Criminal solicitation is when one person commands, encourages or asks another to commit a
crime. A common example is prostitution. The crime is complete when one person asks another to
commit an illegal act. It is typically a crime of words that entice, incite, order, advise or otherwise
encourage another person to commit a crime. No overt act in furtherance of the solicitation is required.
In some ways, solicitation is related to the formative stages of a conspiracy. One way, it differs from
conspiracy is that, no agreement is necessary by the person being solicited. One person can be guilty of
solicitation. The crime solicited does not need to be committed.

The gist of common law solicitation is incitement, asking someone else to commit an offense with the
intent that, that person (the doer) commits the offence as a first degree principal.

At common law, solicitation included these elements:

(1) the request, enticement, urging, or encouragement by the soliciting person,

(2) of another person,

(3) to commit a crime (at English common law, a felony or a misdemeanour that would breach the
peace, obstruct justice or otherwise be injurious to public welfare; only a felony at American common
law) as the actual doer, e.g., first degree principal, and

(4) with intent that the solicited crime be committed.

A person can't be charged with the actual crime solicited and criminal solicitation.

At common law, the defendant is not guilty of solicitation if he asks another person to assist him in
committing the target crime. When you encounter a "do it with me" scenario, it isn't common law
solicitation. Common law required an accomplice-perpetrator relationship. To be guilty, the solicitor
must ask the person solicited to commit the offense himself. i.e., a "do it for me" scenario. Also, at
common law the words of the solicitor must be successfully communicated to the person solicited. Re
merger, solicitation at common law merges with the substantive crime and the conspiracy crime.
26

Thus, under modern common law, a defendant cannot be convicted of both solicitation and the
completed crime (or conspiracy). Also, solicitation merges with attempt, as where D1 attempts to
murder V at D2's request but fails, D2 is liable as a party to the attempt under complicity theory and
cannot be convicted of both the solicitation of D1 and the attempt crime committed by D1 in compliance
with D2's solicitation.

12. Elements of solicitation:

Presently, it’s essential elements are as follows:

(1) with the purpose of promoting or facilitating a crime,

(2) the solicitor commands, encourages, or requests another person to engage in specific conduct,

(3) which specific conduct would be a crime, an attempt, or would amount to complicity.

The elements of solicitation include:

(1) mens rea -- not intent to commit a crime, but specific intent to persuade someone else to commit a
crime; also not joking around or making casual comments ("I wish that person would drop dead") but
"purposely" wanting to persuade someone.

(2) actus reus -- words that contain some sort of inducement; words that are on the list of proper
utterances for the crime of solicitation; uttering the words is the actus reus, and it doesn't matter if the
means of utterance is oral, written, or electronic.

Defences: Impossibility of any type is the same as no defence. Some jurisdictions allow withdrawal or
renunciation.

Renunciation of Criminal Solicitation - At common law, renunciation was not a defence to solicitation.
Now only complete and voluntary renunciation of purpose in solicitation is recognized.

ABATEMENT UNDER INDIAN PENAL CODE

Chapter V, section S 107 to 120, relating with Abatement.

When several person s take part in the commission of an offence, each one of them may contribute in a
manner and degree different from the others to the commission of it. The offence may be committed by
the hands of one person at the instigation of another person, while some other may only be present for
27

offering help at the time of commission of it, and still others may help the principal culprit in procuring
the tolls. It is necessary, therefore, to mark the nature and degree of participation of each of the persons
to determine their degree of culpability. However several gradations of action do not necessarily imply
different measures of guilt with a view to distinctions in punishment.

In English Law, differently treat the principle offender who may be of first degree and accessories who
may be second degree.

IPC- The Indian penal code makes a brad distinction between principals and abettors but does not
recognize the accessory after the fact except that offenders has been made a substantive offence in some
cases.

Under IPC abatement is constituted in the following ways:

1. 1. Instigating.

2. 2. Engaging

3. Aiding.

Instigating- Means the act of inciting another to do a wrongful act. One may abet the commission of an
offence by counseling, suggestions, encouraging, pouring or commanding another to do an act. In order
to constitute abatement by instigation some active proceeding towards the preparation of the
crime is necessary. To instigate means to actively suggest or stimulate by any means or language, direct
or indirect, whether it take the form of express solicitation or of hints, insinuation or encouragement, or
to provoke, incite, urge or encourage to do an act. Any form of language may be used but there must be
reasonable certainty in regard to the meaning of the words which an inciter may use.

Illus-

A and B discovering that C intended to commit theft in Z's house. Arrange together to persuade him to
steal there from certain articles form them. Here A and B will be liable for abatement and C for theft.
28

Mere acquiescence, silent assent or verbal permission would not constitute instigation.

A tells B that he intends to murder C,B says do as you like, A kills  C, here B cannot be said to have
instigated.

Reason- it was meant actively to suggest or stimulate the commission of an offence.

Willful misrepresentation or Concealment:

Explanation I of section 107 of IPC says that instigation may be constituted of willful misrepresentation
or willful concealment of a material fact by one who is bound to disclose it.

Instigation by Letter: Instigation may be direct or it may be  by a letter. Where A writes a letter to B
instigating thereby to murder C, the offence of abatement by instigation is completed as soon as the
contents of the letter become know to B. if the letter never reaches B, it is only an attempt to abet but not
abatement.

Abatement by Engaging

Abatement by conspiracy: abatement of conspiracy consist when two or more person engage in a

conspiracy for doing a thing which is illegal thing or act or illegal omission.

Thus in order to constituted abatement by conspiracy following conditions must be there:

1. A conspiracy between two or more person.

2. An act or illegal omission may take place of that conspiracy.

Conspiracy means an agreement between two or more persons:

To do an illegal act or

To do an act which is not illegal by illegal means.

29

Thus clause II of section 107 of IPC, is a mere combination of person or agreement is not enough , an
act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission
must also be in order to the doing of the thing agreed upon between them.

But for an offence u/s 120A a mere agreement is enough, if the agreement is to commit an offence.

Clause 2 has to be read together with Explanation 5 of section 108, which provides that it is not
necessary to the commission of the offence of abatement by conspiracy that the abettor should concert
the offence with the person who commit it. It would be sufficient if he engages in the conspiracy in
pursuance of which the offence is committed.

Conviction for conspiracy-

No person can be convicted for conspiracy, if the charge against all other conspirators has failed, or if
other alleged conspirators are acquitted.

Abatement by Aid-

A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of
that thing.

It would be clear if we read clause 3 of s107 with explanation 2, that a person cannot be held guilty of
aiding the doing of an act when the act has not been done at all.

Mere intention to facilitate, is not sufficient to constitute abatement, unless the act which it is intended to
facilitate actually take place.

Illustration-

A servant keeps open the gate of his master's house, so that thieves may come, and thieves do not come.
But the servant intended and informed thieves the door is open and they can come, he would be held
liable for abatement.
 30

Mere giving of aid- A mere giving of help is not amount of abatement, until the person who provides
the aid does not know that an offence was being committed or constituted.

Illustration-A wanted to kill B, he perused C to call B, C calls B and B is murdered, here C provide the
aid, but he did not know that A wanted to kill B. So he would not be held liable for abatement.

Mere presence does not amount to aiding-

Mere presence at the commission of an office done not amount to intentional aid, unless it was intended
to have that effect., and the present aware that an offence is about to be committed an office, or he
actively support or present hold some position, authority, or rank in committing the offence.

Aid by illegal omission-

When law impose a duty on someone and he intentionally for adding some one in an illegal, failed to
discharge his duty he shall be liable for abatement

VIII. DEFENCES TO INCHOATE CRIMES

There are defences to inchoate crimes. These vary by state laws and crime type. Common defences
include:

 Abandonment : Abandonment means you completely and voluntarily stop all actions towards
completing the actual crime. For conspiracy, you also have to try preventing the crime from happening.
Do this by informing the police in time or doing something to stop the crime.
 Legal impossibility: Legal impossibility means what the person intends to do isn't actually a
crime. For example, if a person intends to shoot a target on a tree but misses and almost hits someone,
it's not attempted murder since his intention isn't illegal.
 Factual impossibility: Factual impossibility means circumstances made it impossible to commit
the intended crime. These are usually circumstances the person attempting the crime isn't even aware of.
For example, if a person tries to shoot someone with a broken gun. Most states don't allow this defense
since the person still has the specific intent to commit an illegal act.

Defences
31

There are a number of possible defences to the charge of an inchoate offence, depending on the
jurisdiction and the nature of the offence.

Impossibility

Impossibility is no defence to the crime of attempt where the conditions creating the impossibility are
unknown to the actor.

Originally at common law, impossibility was a complete defence; as it was under French law at one
point. Indeed, the ruling in Collins's Case L. and C. 471 was that an offender cannot be guilty of an
attempt to steal his own umbrella when he mistakenly believes that it belongs to another. Although the
"moral guilt" for the attempt and the actual crime were the same, there was a distinction between the
harm caused by a theft and the harmlessness of an impossible act. This principle was directly overruled
in England with the rulings R v Ring and R v. Brown. The example from R v Brown of an attempt to steal
from an empty pocket is now a classic example of illustrating the point that impossibility is no defense
to the crime of attempt when the conditions creating the impossibility are unknown to the actor. This
principle has been codified in the Indian Penal Code

Abandonment

A defendant may plead and prove, as an affirmative defence, that he:

1. Stopped all actions in furtherance of the crime or conspiracy

2. Tried to stop the crime as it was ongoing

3. Tried to convince the co-conspirators to halt such actions, or reported the crime to the police or
other authorities Assisting or Encouraging Crime

Part 2 of the Serious Crime Act 2007 creates, at sections 44 to 46, three inchoate offences of
intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be
committed; and encouraging or assisting offences believing one or more will be committed. In each
case, the actus reus requirement is that the defendant carry out an act capable of "encouraging or
assisting" the commission of another offence. "Encouraging" is not defined in the statute and can be
considered in the same way as the previous crime of incitement. It does not matter if the encouragement
or assistance has no effect. "Assisting" is likely to be considered similar to "aiding" in accessorial
liability. Assistance can be provided indirectly, for example through a third person.

Whereas incitement can only be committed when the defendant incites the principal offender, the crime
of "encouraging or assisting" includes helping an accessory.
 32

Incitement

The common law offence of inciting the commission of another offence was abolished on 1 October
2008, except in relation to offences committed wholly or partly before that date. However, the language
of incitement is retained in other statutory offences, such as inciting a child under 13 to engage in sexual
activity contrary to section 8 of the Sexual Offences Act 2003. The same rules are applied in these cases
as the existing body of law on incitement.

Incitement consists of a situation in which a defendant "incites another to do or cause to be done an act
or acts which, if done, will involve the commission of the offence or offences by the other; and he
intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the
offence or offences". Unlike attempts, incitement is a common law offence. Incitement has a particularly
broad actus reus; it has been interpreted to include "a suggestion, proposal, request, exhortation, gesture,
argument, persuasion, inducement, goading or the arousal of cupidity". While it must include an act of
incitement, this can be both express and implied. For an offence to be committed, the incited act must be
criminal in nature, and an offence not only for the person doing the incitement but the person incited.

Other famous impossibilities: True Legal Impossibility, Quasi-Legal Impossibility and Factual
Impossibility

IX.

INCHOATE CRIMES AND CRIMINAL RESPONSIBILITY

UNDER INTERNATIONAL LAW

“‘Well, General Clark, I warned [General Ratko Mladic] not to do it, but he didn't listen to me.’”

– Testifying before the international tribunal at the Hague, General Wesley Clark recounts Slobodan
Milosevic’s statement regarding the massacre of Bosnian Muslims at Srebrenica.

 Introduction

Prosecuting crimes against international law often entails complex analysis of guilt in those who partake
in organized violations of international law. Culpability for crimes against international law may not be
limited under customary law to those who actually carry out those crimes. Most nations prosecute
inchoate acts (such as conspiracy and incitation) in their domestic criminal law. At times, the
33

international community has prosecuted inchoate crimes. The international community has not,
however, clearly stated whether or not inchoate crimes such as conspiracy or incitation (solicitation, as
American law refers to it) to violate international law should be included in a statement of customary
international law. Such inchoate crimes have at times been punished in international court or laid out in
the statutes establishing such tribunals.2 In order to establish custom under international law, one must
establish customary practice and opinio juris . In this paper I wish to consider the historical
background of inchoate crimes, the current practice in individual nations around the world, and the
contemporary treatment under international law. The criminalization of inchoate crimes under domestic
law is essentially universal, sufficient to establish customary practice. International courts have relied

on inchoate crimes such that their acceptance should represent opinio juris.3 Both incitation and

conspiracy to violate international law can and should be punished under customary international law.

 History and Contemporary Practice in Common Law Jurisdictions

A. Origins and Early History of Conspiracy in England

While the origins of conspiracy law in England are often traced to the infamous Star Chamber, its
heritage runs much earlier, to the birth of the common law itself. In 1304, the Third Ordinance of
Conspirators recognized the offense of conspiracy to thwart justice, either by agreeing to commit perjury
or agreeing to bring a false suit before the courts. Conspiracy as a general criminal offense to commit
any crime did not, however, arise until the seventeenth

century. In 1611, in the Poulterers’ Case, the Star Chamber tried and convicted a group of
poulterers who had agreed to bring false charges of robbery, despite the fact that the plan had not
succeeded.The case posed described the fundamental novelty of the charge of conspiracy, that “fake
conspiracy betwixt divers persons shall be punished although nothing be put in execution.” In
1716, the crime of conspiracy was laid out by Hawkins in his Pleas of the Crown , stating that
“all confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common
law.” This enduring description of conspiracy led to the criminalization of combination to produce any
number of ill effects, some of which were not criminal when performed by a single person. In R. v.
Edwards, the defendants conspired to have an impoverished woman married to a man in another parish,
in order to impose the fees for her public assistance on the other parish.8 Though the court acquitted
34

the defendants, the court stated that a “bare conspiracy to do a lawful act to an unlawful end is a crime.
This view of the nature of conspiracy, that a legal act could be rendered illegal when performed by a
group, endured for centuries in English law.

Defendants have, in recent times, been convicted of conspiracies to promote sodomy after homosexual
sodomy had been legalized. English courts have also punished conspiracies with sentences longer than
the statutory maximum for the substantive offense.They have also convicted conspirators when the
statute of limitations for the substantive offense has lapsed. The Crown has also successfully brought
charges against conspirators in trial courts when the substantive offense could only be tried before a
magistrate The English courts for many years considered conspiracy to be an offense largely divorced
conceptually from the underlying substantive offense. In 1977, the Parliament codified all criminal
conspiracies except for the conspiracy to defraud. In 1986, the Law Commission recommended
codifying the conspiracy to defraud. The Law Commission is still advancing such proposals, without
any final codification of the conspiracy to defraud.

One of the further dramatic changes in the English law of inchoate crimes is the expansion of
jurisdiction over such crimes. Conspiracy or incitation enacted in England, when the substantive crime
is to planned to take place abroad, can be punished in England, provided the crime is an offense both in
England and in the host country. Similarly, a conspiracy or incitement made abroad to commit a crime
in England can be punished in England, even where the substantive crime never took place.

B. Development of American Criminal Law

Though the founders of the American republic were so opposed to the inquisitorial system of English
law that permitted the criminalization of many group activities as seditious that treason is the only crime
explicitly described in the U.S. Constitution, the United States has long prosecuted solicitation and
conspiracy aggressively. The passage of the RICO statute in the sixties greatly facilitated the
prosecution of inchoate crimes, as well as putting racketeering into the jurisdiction of the federal
government, rather than just state governments, who prosecute the bulk of crimes. The drafting of the
RICO statute drew many influences from the European tradition of prosecuting membership in a
criminal organization, rather than simply the common law notion of conspiracy; even so, it looks not for
mere membership, but “association-in-fact,” based on an individual’s participation in the group, rather
than membership.

The elements of criminal conspiracy under the major statute for American conspiracy law are (i) an
agreement between at least two parties, (ii) to achieve an illegal goal, (iii) the parties know the nature of
the conspiracy and participate in it, and (iv) at least one party commits an overt act in furtherance of the
35

conspiracy.One of the recent American innovations is the overt act requirement, also required in many
state jurisdictions.Conspiracy and solicitation, though frequently prosecuted,have additional restraints on
their prosecution in the United States. The peculiar free speech and free association law under the First
Amendment to the US Constitution, as well as an underlying national sentiment against criminalizing
simple association, have restricted the scope of inchoate crime prosecution. Many of the great free
speech and free association cases have been brought in the context of prosecutions for conspiracy. The
proposition that one cannot be convicted for mere membership in a group is well-established in
American constitutional law, which may explain the reason why the criminal organization statutes
popular in civil law countries have not taken hold in the United States.

 Inchoate Crimes in Civil Law Countries

Early Development of Inchoate Crimes

Despite famous claims to the contrary, notions of conspiracy and other inchoate crimes pervaded
Roman criminal law. While a general offense of conspiracy was not cognized by Roman criminal law,
numerous specific offenses are laid out in the Digests of Justinian which describe inchoate criminal acts
that would be described as incitation or conspiracy today.The elaborately described crime of treason
allows criminal punishment for numerous inchoate acts.The punishment for adultery also entails
punishment for the crime of providing a house for the planning of adultery—an offense which seems to
consist of facilitation of conspiracy.Incitation of adultery was also a crime under Roman law.Those who
conspire to blackmail adulterers were punished as the adulterers would be.Conspiracy to raise a mob
could also be punished.The English statute prohibiting conspiracies to commit perjury outlined above
even had a Roman precursor, though no historical link suggests that the English statute was derived
from the Roman one. Considering the comparative paucity of the Roman criminal law, the frequent
citations of punishment for inchoate acts, for rendering aid or counsel to another’s criminal acts, for
conspiring, inciting, or agreeing to a criminal act, suggest that the danger of group action concerned the
Romans greatly. Though the fall of Rome led to the decline of the kind of city-oriented lifestyle that
most fosters concerns about conspiracy and group action, the so-called “dark ages” included a legal
conception of inchoate crime. In the pastoral world of the Salian Franks, the solicitation of murder, even
where the deed went undone, could incur punishment.The Salic Law also punished soliciting a slave to
leave his master.Beyond solicitation, the Salic Franks also punished group criminal action, even where
some members of the group did not partake. Where a murder occurs in a group of less than seven, the
36

Salic law outlines punishment for members of the group who do not render up the culprit.The Franks
also punished members of a group who attacked a free woman, even when the members were known not
to have actively participated in the attack. Later codes, though not imposing liability, would also find
group action sufficient grounds for further examination under torture.

As Europeans returned to living in increasingly larger cities and as religious conflict gripped the
continent, Continental authorities began to recognize the dangerousness of group crime and punish
inchoate acts. Canon law throughout the medieval and Renaissance period punished conspiracies.
Clerics involved in or knowing of a conspiracy would be defrocked and imprisoned.Hugo Grotius
acknowledged a hierarchy among crimes, determined by the degree of their progress toward the final
goal. Immediately after completed crimes, Grotius listed “criminal designs” as occupying the second
tier of criminal behavior.

B. Modern Civil Law Description of Inchoate Crimes

Generally speaking, the traditional punishment of inchoate group acts within civil law countries has
been through the “criminal association” rule, rather than the common law “conspiracy” rule. The
“criminal association” focuses on the formation of a criminal gang with the purpose of committing
criminal acts. Under the common law, a conspiracy focuses on the common purpose of multiple
persons, whether or not they are organized into a single group. In recent times, the distinction has grown
far less significant, as France and Germany have also adopted common law-like rules where agreement
is sufficient to find culpability. On the other side of the Atlantic, the American RICO statute punishes
association-in-fact enterprises rather than specific agreements to perform specific criminal acts.

In France, the prosecution of inchoate acts has become common. In 1810, group criminality was first
addressed with a statute outlawing all criminal organizations with clear hierarchies and organizational
structures. Today, the elements of the group offense include a collective understanding of the criminal
purpose, an aim to prepare for certain criminal acts, and an intent that those criminal acts be brought
about. French law requires physical evidence and an overt act to prove the association de malfaiteurs
French law also enumerates certain specific conspiratorial crimes, such as any plot against the state
followed by a material act advancing the plot.

French complicity law also plays a role in the punishment of inchoate crimes. Simple advice will
sometimes suffice to establish guilt where the accomplice knows of the criminal purpose of the actor. A
mother, knowing that her child’s father was going to drown their child in a canal, advised the father to
bring a blanket and a sack along, for the purposes of wrapping the child in the blanket and placing the
37

child inside the sack.44 She was found guilty as an accomplice in the death of her child.45 The
French Penal Code also incorporates incitation into its complicity statute, allowing a finding of
complicity where an actor brings about a criminal act by provocation or instruction.

The German statutes on inchoate crimes may, in fact, impose more stringent liability that their Anglo-
American counterparts. The German Penal Code punishes a failure to report a planned crime, provided
that the crime was not a serious one and not one abandoned by the conspirators. Essentially, such a
penalty is one for conspiracy, even where the defendant did not agree to the conspiracy and merely fails
to report it. The Penal Code also allows punishment for praising or rewarding crime after the fact, even
where the defendant had no knowledge that the crime would be committed beforehand. Such crimes
come close to defining “thought crimes” by imposing affirmative duties on citizens to thwart crimes in
which they have never taken active part beyond simple awareness of the plan, or where they have taken
no part in the crime except to applaud it afterwards. German law punishes individuals much less
culpable than those that run afoul of Anglo-American laws.

Incitement to commit a crime in Germany can be punished; similarly, an unsuccessful attempt to incite
can be punished as an attempt. A separate crime is defined for the public incitement to crime.50 In a
nod to Germany’s twentieth century history, a particular crime of agitating one segment of the people
against another or defaming one segment of the people has been defined.51 Instruction intended to
encourage others to commit crimes is also criminalized. Group criminality is strongly punished in
German criminal law. Formation of armed groups for any purpose is forbidden. German law also
prohibits the formation of an organization for the purpose of committing crime (as well as membership
in such a group, recruiting for such a group, or otherwise supporting such a group). Any of the above
crimes performed on the behalf of a terrorist group will incur an increased penalty.

Italy has not made substantive offenses out of inchoate criminal acts to the extent of its European
neighbors. However, even Italy has recognized the greater danger present in group criminality. Even
before the reform of the criminal code in 1989, the Italian criminal code provided heightened penalties
for participants in crimes involving more than five people, as well as for anyone who incites or directs
others under his authority to commit crimes.The Italian law largely prohibits group criminality by
making illegal criminal organizations, rather than criminal agreements. However, the scope of criminal
association law has recently been

expanded by the Corte di Cassazione, where non-members can be tried as accomplices to the
association, recalling the American RICO standard of punishing an association-in-fact rather than mere
membership.58 Further, in considering the question of whether extradition from Italy to the United
38

States would be appropriate where the extraditee would face conspiracy charges, Italian treaty
negotiators that the RICO statutes in the United States and the Italian criminal association law are
sufficiently similar to satisfy the “mutual criminality” requirement and allow extradition.

Japan, like Italy, has not made some of the strides other nations have towards making substantive
offenses out of inchoate crimes. However, Article 61(1) of the Japanese criminal law does punish
instigators of crime just as the law would punish the principal actor, not by creating a substantive
offense of “instigation,” but by allowing that instigation can be one means by which a principal achieves
the aim of his crime. While the Code is obscure on the point, the opinion of experts seems to agree on
the notion that finding an instigator guilty is prefaced on action by the actual perpetrator of the crime.61
Further, the instigation must “conclusively precipate” the co-principal’s acts.Otherwise, the Japanese
Criminal Code only assigns culpability for acts of conspiracy or instigation where the ultimate criminal
act is not completed under limited circumstances. The Subversive Activities Prevention Law allows
prosecution for instigation of a homicide for political reasons, even where no homicide actually occurs.
Insurrection, assisting the enemy, inducing a foreign nation to attack the home country, or waging
private war are all crimes for which simple incitement or conspiracy to bring them about is sufficient to
incur punishment.

Finally, Chinese law recognizes the criminality of preparatory acts, as well as a French- style “criminal
organization.”The statute allows for punishment of leaders for all the acts of their subordinates, and of
every principal for the crimes they personally led or carried out. Chinese criminal law also punishes
instigators in proportion to their part in the crime.

C. Summary of Civil Law Standards

The roots of prosecution of inchoate crimes run deep and branch wide in the civil law. Civil law nations
are uniform in agreeing that incitation of a crime (or solicitation, provocation, instigation, etc.) is
generally an inchoate crime and can be prosecuted. The dramatic shift in recent time is the shift of their
theory on group criminality. While essentially all civil law countries retain a “criminal organization”
statutory offense, several of the most prominent countries among civil law states (including France and
Germany) have vastly broadened their standards on group criminality, so as to encompass most, if not
all, of the Anglo-American standard of “conspiracy.”

This dual, though overlapping, system is a sensible system for prosecuting group criminality throughout
the world. For a conspiracy is simply a group (defined by its agreement) with a commonly agreed-upon
criminal aim. Only those conspiracies which do not involve an organized group would fall outside the
39

civil law model of “criminal organization.” The number of groups outside that European model will be
small, as a criminal agreement could be construed,

essentially, as the formation of an organization toward that criminal end. The substantive differences in
between the two models are, at heart, minimal. The benefits to maintaining two standards are in many
ways procedural rather than theoretical. The drafting of the RICO statute in the United States, for
instance, came about at least in part because membership in such a group was easier to prove, under
certain circumstances, than agreement to a particular goal. On the other hand, the original provisions of
the 1810 code relating to criminal organizations in France have been stripped of most of their
requirements that the criminal group have structure and hierarchy. I imagine this is because the
agreement, whether explicit or implicit, is the essence of any criminal group (the purpose of joining a
pirate band being to commit piracy, the purpose of joining a band of brigands to commit armed
robbery), regardless of how organized the group is.

I propose that there is a clear rule in the domestic law of the nations of the world that all incitation to
crime should be punished as a criminal act. I further propose that the two standards of common law
“conspiracy” and civil law “criminal organization” are convergent standards, whose individual
requirements may change from country to country, but whose essential scope and justification are the
same.

 International Opinio Juris on the Question of Inchoate Crimes

The discussion of the treatment of inchoate crimes in international forums begins with the Nuremberg
trials. Herbert Wechsler, the legal scholar, was the Assistant Attorney General for the War Department.
He received a memo from Murray Bernays proposing a post-war tribunal for the war crimes committed
by Nazi generals and civilian administrators. The original proposal entailed an enormous prosecution
for a single conspiracy. Wechsler rejected that notion, saying
40

that “maybe international law didn't similarly recognize the criminality of conspiracies.” However,
Wechsler recognized at the same time, that, “Bernays himself was confused between conspiracy as a
crime and conspiracy as a mode of complicity in substantive offenses, committed by one of the
conspirators. All civilized systems recognize conspiracy – or at least agreement, encouragement—as a
mode of criminal participation in the commission of substantive offenses.”The list of charges set
forth at Nuremberg, therefore, included not only substantive offenses against the law of nations, but
conspiracy to commit crimes against peace.

The articles of the Nuremberg Charter also allowed for the declaration of certain organizations as illegal.
The IMT included six Nazi organizations on the list of illegal organizations.The criminal organization
articles of the Nuremberg Charter were criticized before the IMT. Even the prosecution felt compelled
to narrow the sweep of the criminal organization standard in order to salvage the prosecution at all.
IMT judge Francis Biddle, who had helped to draft the plan leading up to the tribunal at Nuremberg
while acting as U.S. Attorney General, felt compelled to criticize the criminal organization offense after
observing its operation in the tribunal.His objections to the entire charge, however, were not shared by
the rest of the tribunal.

However, simply designating the crime of conspiracy to wage aggressive war as prosecutable at
Nuremberg could not insulate the crime from criticism by French and Soviet lawyers and judges. In the
Justice case, which put a number of German judges on trial, the Allied judges dismissed Count One
entirely against the defendants, as they felt that they lacked jurisdiction to try a charge that listed
conspiracy as a separate and substantive offense, though they also acknowledged that the portion of the
count which alleged that the defendants had planned the crimes of aggression described performance of
actual crimes, rather than simple conspiracy.

The Krupp case at Nuremberg outlined the first international conception of conspiracy law, requiring a
finding that of 1) a plan involving at least two persons 2) a clearly outlined criminal purpose and 3) that
the plan cannot be too far removed from the time of decision and action.Nevertheless, the evidentiary
concerns of the tribunal were high, requiring that knowledge of the conspiracy be proven directly (not
by inference) and beyond a reasonable doubt.Not surprisingly, such a standard hobbled conspiracy
prosecution. A separate “conspiracy”-like form of participation (in successful endeavors) was also
defined by the tribunal

where 1) there was an existing system to commit the offences, 2) awareness of the system by the
accused and 3) that the accused be involved in the operation of the system.

At the IMT at Nuremberg, the conspiracy and incitation crimes were defined after the events prosecuted
41

occurred.81 The implications of these statutes are subtle but powerful. The international community
cannot draft an ex post facto statute and punish criminals for acts performed before they were
forbidden. The only way in which the international community could punish culprits would be if the
international community agreed to the existence of some natural law or jus cogens prohibition
which needed no prior notification. That is, the crime of conspiracy to effect aggressive war must be so
self-evident that one can prosecute such a conspiracy, even where no code of law specifically for bad
them.

Though the trials at Nuremberg were an achievement for humanity and international law, they were
rather a disappointment for some of the men who went to Germany hoping to convict every defendant
on every charge. And no man suffered more disappointment than Justice Jackson, who was widely
thought to have been humiliated by Hermann Goering while Jackson cross-examined Goering.In the first
and most important trial of the central Nazi leaders, he failed even to convict three of the twenty-two
defendants. Of the nineteen convicted, only twelve were sentenced to death. His bitterness may not have
been limited to concerns over his own performance, but may have arisen from his frustrations in
working with members of legal systems and judiciaries with which he was unfamiliar. Some of the
bitter lessons Jackson learned in the rejection of the count of conspiracy by civil law jurists at
Nuremberg come out in his terse and angry concurrence in Krulewitch v. United States , shortly after
his return from Europe.

After the prosecutions at Nuremberg (and the counterpart prosecutions in Tokyo), the world community
created a pact describing genocide for future reference in prosecution. The UN decided to enforce
liability for conspiracy to commit genocide on the grounds of simple agreement, because of the
collective action required in order to achieve genocide and to prevent future acts of genocide.86 The
ILC also set out a principle of individual responsibility allowing conspiracy as a general means of
achieving a crime in its Draft Code of Crimes against the Peace and Security of Mankind, wherever the
defendant “directly participates in planning or conspiring to commit such a crime which in fact
occurs.”87 The Draft Code of the ILC also imposes liability on incitation where the crime occurs.88
In the discussion of the statute of the ICC, delegates considered such a standard for the court. The
statute of the ICC now imposes liability on those who intentionally contribute to a crime and where they
act to further the criminal purpose of the group or where they act in knowledge of the intention of the
group to commit the crime.

The International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case outlined the
statutes to encompass the actions of those who plan and further any criminal design, though only
42

conspiracy to commit genocide was outlined in the statute.90 The tribunal essentially found three
degrees of criminality in the planning and “common criminal design” criminality: intentional
perpetration, knowing perpetration, and negligent facilitation.

The international community has developed an elaborate theory of command responsibility for the
actions of subordinates, which imposes responsibility where commanders fail to act. Originally derived
from the established responsibility of military commanders, it has been extended to civilian and political
leaders.The origin of the doctrine in modern international criminal law derives from the Yamashita
prosecution after World War II. The essence of the doctrine is that a superior can be held responsible for
crimes done by his inferior, either where the commander knew or should have known of the crime
beforehand and did nothing to stop it, or where the commander discovered the crime after the fact and
failed to punish it.The doctrine of command responsibility has been applied in force in both the ICTY
and the ICTR.

The doctrine of command responsibility has much to commend of it. First, by condemning failure to
stop crimes of which the commander knew or should have known, the doctrine allows no defense of
willful blindness. Within political structures, particularly, the doctrine also gives special force to the
work of outside agencies like human rights groups. Even where human rights abuses or war crimes
might reasonably go unnoticed, an outside body that brings such abuses to light will require a
government to deal with such abuses or face potential criminal liability in the future. The doctrine thus
gives incentives for vigorous advocacy to NGO’s and other monitoring bodies as well as special force to
their work.

However, the command responsibility doctrine is specially tailored to the political needs of these sorts of
tribunals. Namely, these tribunals act after the crimes are already essentially complete and prosecute the
members of the highest echelons of the conspiracy. The doctrine would not serve the interests of a body
trying to use international law to bring down an ongoing conspiracy against the law of nations using the
law alone. The large-scale conspiracies addressed by domestic laws on group criminality are generally
prosecuted by working the way up the hierarchy, one rung at a time. The command responsibility
doctrine only has serious effects where the conspiracy is broken up from by extralegal forces (external
military invasion, as in Yugoslavia, or merely the passage of the old regime, as in Rwanda) and the
commanders of illegal action are corralled for trial. To combat an ongoing action, the international
community will need different methods. The different method I propose should reflect the methods
domestic legal systems use to combat ongoing group criminality.

The first inchoate crime I would propose for use as a tool of customary international law is incitation.
43

As for the crime of incitation, little formal analysis needs to be done, where the different domestic
standards overlap almost identically. The most substantive difference between legal systems would be
in those jurisdictions (such as Japan) which generally do not punish incitation which does not result in a
crime. Where two people possessing the same mens rea advocate a particular crime with the same
vehemence, no serious theoretical system should punish one instigator because his audience complied
with his instigation while letting the second escape simply because his audience was not as receptive.
Such a stance would be tantamount to punishing a successful murderer but refusing to punish an equally
culpable defendant who failed
44

to kill his target solely because his aim was poor. Regardless, the consensus of the international
community that even unsuccessful incitement to genocide should be punished in Rwanda and
Yugoslavia should assuage any concerns about criminalizing incitement.

The second concern over criminalizing incitement rests only on a semantic concern. In common
law countries, incitement (or solicitation) is punished as a substantive offense. In civil law
countries, incitement is generally considered a means to achieve a substantive crime, rather than
an offense on its own. I see little importance to such a distinction. One effect of making
incitement a means of commission rather than an independent offense would be to make
unsuccessful incitement a form of attempt, and subject to potentially lesser punishment than a
successful incitement. Such a concern, however, rests on the larger debate of whether attempts
should be punished to the same extent as a successful crime, which I need not resolve here.
Ultimately, the classification of incitement under customary international law is less important
than whether it can be prosecuted as a crime against customary international law at all.

The thornier problem in deriving customary international law rules on inchoate crimes from
domestic standards is the resolution of the “conspiracy”/“criminal organization” conflict. Even
though common law and civil law countries have come much closer on the question of group
criminality since 1945,94 material distinctions on the domestic legal standards still remain.
However, the core of their group criminality law overlaps to such an extent that an amalgam of
the two legal standards would still apply to many, if not most, group criminal acts. I would
propose that a criminal conspiracy involving both an agreement between the parties to violate
customary international law and some evidence of individual participation in the conspiracy’s
activities should be understood to violate customary international law. Whether the statute
would create a substantive “conspiracy” offense or merely be understood to make conspiracy a
means to accomplish a separate crime is not, I think, as important as recognizing its culpability
and prosecuting such offenses.

The applicability of a customary international law understanding of incitement and conspiracy

would dramatically affect the prosecutions before international tribunals or the ICC. Consider
the epigram of this article from General Wesley Clark’s testimony before the ICTY. Under a
command responsibility analysis, the ICTY would be required to find that Slobodan Milosevic
45

held a position of command over General Ratko Mladic, in order to impose liability for the
massacre at Srebrenica. Under a conspiracy analysis, the ICTY would only be required to find
that Milosevic and Mladic had made an agreement to facilitate the Bosnian Serb army’s invasion
of Bosnian Muslim and Bosnian Croat territory. Criminal culpability does not merely flow
vertically from one superior to an inferior. It may also flow horizontally between two groups
who agree to violate international law and cooperate in violating international law. Still, since
those tribunals and courts are governed by statutes established by the international community,
the international community could adopt a conspiracy standard by statute. Rather, the primary
effect of construing these inchoate crimes as tools of customary international law would be seen
in domestic law.

The erga omnes or universal jurisdiction over certain crimes against international law allows
prosecution anywhere in the world for many war crimes, crimes against humanity, genocidal
crimes, and, most relevantly, crimes of terrorism, even where no nexus with the forum state is
established.95 By expounding a customary international law notion of incitement and
conspiracy, inchoate crimes committed in one country could be prosecuted in another. Of
course, terrorism in general has not been sufficiently defined as a crime against international law.
Still, a number of particular terrorist acts have been defined as violating international law.
Consider the following hypothetical case: country A obtains intelligence of a conversation
between numerous suspects which takes place in country B, whether from another country or
from their own surveillance. In the conversation, the suspects discuss a plan to launch an attack
in country C. By the time the conversation is received, translated, and analyzed in country A,
several weeks have passed. Country A also receives information that one of the terrorist suspects
involved in the conversation has entered country A. When the law enforcement agencies in
country A capture the suspect, they cannot obtain any evidence that the suspect planned any
attacks in country A. Without the capacity under international law to try the suspect for the plot
in country B to act in country C, country A would be in the unfortunate position of having to
either let the suspect go or hold him by some extralegal means (such as “illegal combatant”
status). This situation presumes that for one reason or another countries B and C have not
requested extradition of the suspect, or that for other reasons it is not appropriate or desirable to
extradite the suspect to country B or country C. Where inchoate crimes against international law
46

can be prosecuted under customary international law, however, the suspect can be held on a
cognizable criminal charge. The important effect here is to create more numerous legal means to
try suspects under international law, in preference to creating extralegal alternatives, like “illegal
combatant” status or preventive detention.

The international community has committed itself to fighting terrorism, as well as fighting
organized crime internationally.97 Recognizing the need for an international standard for a
crime of conspiracy to violate customary international law could help the prosecution of
international organized criminal organizations. Similarly, incorporating inchoate crimes into
customary international law could facilitate human rights and war crimes prosecutions under
domestic law. Where the ordinary forum state opposes prosecution, prosecution elsewhere may
provide an acceptable alternative. Consider the Cambodian situation with former Khmer Rouge
leaders whom the state was unwilling to prosecute. Alternately, consider potential cultural
sensitivities, as where a Muslim state might be willing to extradite a suspect to another Muslim
state but not to the United States or Israel. Expanding the number of potential forum states may
facilitate prosecution of crimes against humanity, war crimes, and human rights violations.
47

CASE LAWS

Anderton v ^Attempts - impossibility - the Criminal Attempts

Ryan (1985) HL Act 1981]

  D bought a video recorder believing it to be stolen

when it was not.

 
 
Held: D mistakenly believed - subjectively - it was
possible to commit the full offence.  It was objectively
impossible to commit it.   It would be an 'asinine'
result if convicted.  Parliament cannot have intended
such a result. s 1 of the Criminal Attempts Act 1981,
which overruled the common law of attempt, creates
the offence of attempting a crime, which is objectively
impossible. 

Not guilty

Attorney ^[Attempts - more than preparatory - embarking

General's on the full crime]
Reference No 1 of D attempted to have sexual intercourse with a girl
1992 (1992) without her consent, whilst in an intoxicated state. He
pulled her behind a hedge and forced her to the
ground.  He lay on top of her, lowered his trousers and
interfered with her private parts.   He was unable to
attempt penetration and have sexual intercourse with
her. Did D have to attempt penetration of the woman's
48

vagina with his penis in order to prove attempted

rape?

Held: D's actions were more than merely preparatory. 

He did not have to attempt or achieve penetration for
attempted rape. (D had not embarked on the crime
itself, and such a test is not relevant this represented
the previous common law tests. Concerning the actus
reus of attempts) 

Not guilty, but would be now

Attorney ^[Attempts - Recklessness in attempts]

General's D was acquitted of attempted arson with intent to
Reference No 3 of endanger lives or with recklessness as to whether lives
1992 (1992) are endangered. 

Held: It was only necessary to prove an intent to

cause damage by fire and then recklessness as to
whether lives are endangered thereby.

Not guilty, but would be now

Boyle and ^[Attempts - must be more than merely

Boyle (1987) CA preparatory]

D damaged the door of a house with a view to

49

entering the premises as a trespasser and with intent to

steal therein (attempted burglary).

Held: D intended to enter the house and steal and so

commit the offence of burglary.  In breaking down the
door D did more than a merely preparatory act.

The court was entitled to look back at previous cases

to discover the tests that were applied before.

Guilty
50

Campbell, R ^[Attempts - more than preparatory - embarking

v (1991) CA on the full crime]

  D planned to rob a post office. He drove to the post

office on a motorcycle, walked towards the post office
wearing a motorcycle helmet. D carried an imitation
 
gun and had a threatening note in his pocket, which he
planned to hand over to the cashier. D was arrested
before he entered the post office.

Held: D had not 'embarked on the crime proper', he

had not entered the post office, he had not attempted
to remove the imitation firearm, he was not wearing a
disguise, and his acts were "merely preparatory".

The test to be applied is the "Gullefer test" this test

represents the true meaning of the words in s1 of the
Criminal Attempts Act 1981.   Previous common
law tests were irrelevant.

Not guilty of attempted robbery

51

DPP v ^[Attempts - Physical impossibility]

Nock (1978) HL D agreed to produce cocaine.  This involved
separating it from other substances in a powder that he
believed contained cocaine.  The powder contained no
 
cocaine and so D could not have produced any.

Held:  D could be liable if the indictment was loosely

worded. If a specific item of property was on the
indictment there could be no conviction if it was
physically or legally impossible.

DPP v ^[Attempts - actus reus, proximity test under

Stonehouse (1978 common law]
) HL D, a former government minister in England, insured
his life for his wife's benefit.  He then faked his death
by drowning overseas. D was convicted of attempting
to obtain insurance money by deception.

Held: D's acts were proximate enough to the complete

offence of obtaining property by deception and
therefore capable of amounting to an attempt.

D must have

"Crossed the Rubicon and burnt his boats".

Guilty 
52

Eagleton, R [Attempts - actus reus, proximity test under

v (1855) common law]

D attempted to obtain money from the guardians of a

parish by falsely pretending to the relieving officer
that he had delivered loaves of bread of the proper
weight to the outdoor poor, when in fact the loaves
were deficient in weight.

Held:

Parke B:

"Acts remotely leading towards the commission of the

offence are not to be considered as attempts to commit
it; but acts immediately connected with it are ...".

Not guilty
53

Gullefer, R ^[Attempts - more than preparatory - embarking

v  (1987) CA on the full crime]

  D climbed onto a greyhound racetrack in an attempt to

stop a race. The dog on which he had placed a £18 bet
was losing and he had hoped to recover his stake. The
 
stewards decided not to stop the race.

Held: D, at the stage he jumped on to the track, could

not be said to be in the process of committing theft
and had not committed acts which were more than
merely preparatory to the offence of theft.

Lane LCJ:

the actus reus of attempt is satisfied ...

"when the merely preparatory acts come to an end

and the defendant embarks upon the crime proper.
When that is will depend of course upon the facts in
any particular case".

Not Guilty

This test is often referred to as the "Gullefer Test"

54

Haughton v [Attempts - Impossibility in law -]

Smith (1975) HL D, and others, attempted to handle stolen corned beef
  by receiving them from a van at a motorway service
area.  The police had earlier stopped the van, found
the stolen goods and two PC's waited in the back of
 
the van, others were following the van.

Held: The act of D must form part of a series of acts,

which would constitute the actual commission of the
offence if it were not interrupted. If the series of acts
could never constitute a criminal offence then D
cannot be guilty of attempt.

Lord Reid:

"A man may set out to commit a crime with

inadequate tools. He finds that he cannot break in
because the door is too strong for him. Or he uses
poison which is not strong enough. He is certainly
guilty of attempt; with better equipment or greater
skill he could have committed the full crime."

Not Guilty [Now reversed by the 1981 Act] 

55

Jones, R v  (1990) ^[Attempts - more than preparatory - embarking

CA on the full crime]

  D attempted to murder V.  First he bought a shotgun,

sawed off the end of the barrel and test fired it. Later
he climbed into the back of V's car and told him to
 
drive to a secluded place. D removed the shotgun from
his bag and pointed it at V. The safety catch of the gun
was on. V grabbed the gun and threw it out of the
window and made good his escaped.

Held: D must come close to committing the full

offence, but there may be some acts left to perform
before the substantive offence is committed. D had
still had to remove the gun's safety catch, put his
finger on the trigger and pull it, but he had performed
sufficient acts that were more than "merely
preparatory".

Guilty of attempted murder

Khan, R v  (1990) ^[Inchoate Offences - Attempts - Recklessness in

attempts - nature of mens rea]

D attempted to have sexual intercourse with a girl

without her consent, but he failed.

Held: Recklessness as to whether the girl consented

56

was sufficient mens rea.

Russell LJ:

"The offences of rape and attempted rape are identical

in all respects except that in the former sexual
intercourse takes place and in the latter it does not.
Therefore the mens rea of both offences is identical,
namely an intention to have sexual intercourse plus a
knowledge of or recklessness as to the woman's
absence of consent."

Guilty

Millard & [Attempts - Recklessness in attempts]

Vernon (1987) D1 and D2 were football supporters who repeatedly
pushed against a wooden wall on a stand at a football
ground in an attempt to break it or being reckless as to
whether the wall was damaged.

Held: Mere recklessness was not sufficient. In an

attempt to commit a substantive offence, if the
substantive offence consists of an act leading to the
result - requiring mens rea - full intent is required. If
the substantive offence consists of mens rea relating to
the result and some other circumstance, recklessness
will suffice as a mens rea relating to the other
circumstance.

"The result which would have been achieved if the

offence had been taken to fruition was damage to the
57

stand . . . the prosecution had to show . . . that it was

this state of affairs which each appellant had decided,
so far as in him lay, to bring about."

Not Guilty 

Mohan, R ^[Inchoate Offences – attempts – nature of mens

v  (1976) CA rea]

D was driving his car and responded to a police

officer's signal to stop.  D slowed down but then
accelerated towards the PC. The PC moved out of the
way, D drove off. D was charged with attempt to
cause bodily harm by wanton driving at a police
constable.

The jury were directed that the prosecution had to

prove that D realised that such wanton driving would
be likely to cause bodily harm.

Held: Intent is an essential ingredient of an attempt

and is only mens rea of attempts.

Recklessness would often suffice as the mens rea for

the full offence, attempt was a separate and often more
serious offence with its own separate mens rea.

Not guilty

O'Toole, R ^[Mens rea of attempts]

v  (1987)
58

D committed attempted arson, recklessly.

Held: 'Intention' required for an attempt.  

'Recklessness' only required for the full offence.

Not guilty

Partington v ^[Attempts - Physical impossibility]

Williams (1979) D took V's wallet from a drawer. D looked to see if it
  contained any money, intending to steal anything she
found but it was empty.

 
 
Held: The substantive offence was impossible, so at
that time the attempt could not be possible either.

Not guilty

Rowley, R ^[Attempts – to incite – more than preparing the

v (1992) ground]

D left notes in public places offering money and

presents to boys. These notes, which were not
indecent in themselves, were designed to lure boys for
immoral purposes. The question was whether he was
guilty of attempted incitement of a child under the age
of fourteen years to commit an act of gross indecency.
59

Taylor LJ:

"Here, the note went no further than to seek to

engineer a preliminary meeting. No proposition or
incitement to the offence had emanated from the
defendant. At most he was preparing the ground for
an attempt."

Note incitement amended by Serious Crime Act

2007
60

Shivpuri, R [Attempts - impossibility - the Criminal Attempts

v (1987) HL Act 1981]

  D attempted to deal and harbour drugs.   He believed

he might be dealing with a prohibited drug such as
cannabis or heroin whereas in fact the substance was
 
harmless powdered vegetable matter, snuff or
  cabbage.

Held: The House of Lords overturned its previous

decision in Anderton v Ryan.

Any attempt to commit an offence carries liability if D

 Intended to carry out the substantive offence

and

 Did an act that was more than merely

preparatory,

 Even though completion was impossible.

Guilty

Tosti, R v  [1997] [Inchoate Offences – attempts – must be more than

CA preparatory]

DD attempted to burgle a barn. Around midnight, they

were disturbed examining the padlock on the barn
door, but ran off when they realised they were being
watched. Their cars were parked in a lay-by nearby,
and hidden in a hedge between the cars and the barn
was an oxy-acetylene cutting set.
61

Held: The jury had been entitled to find that their acts

were more than merely preparatory.

Guilty

Walker and [Attempts - 'With intent' includes 'oblique or

Hayles (1990) indirect intent']

D1 and D2 engaged in a fight during which V was

injured when he was thrown over a third floor
balcony.

Held: The mental element for attempted murder,

could be inferred from evidence that D foresaw death
as a virtually certain or highly probable consequence
of his actions.  This was the principle in Nedrick.

Guilty
62

White, R v (1910) ^[Impossibility due to incapacity]

  D tried to kill his mother by poisoning her but did not

use enough poison to successfully cause her death.

 
 
Held:

Bray I:

"… the completion or attempted completion of a series

of acts intended by a man to result in a killing is an
attempt to murder even though this completed act
would not, unless followed by other acts, result in
killing."

Guilty

Whybrow, R ^[Inchoate Offences – attempts – nature of mens

v  (1951) rea of attempted murder]

  D built an electric device to give an electric shock to

his wife when she took a bath.

 
 
Held: Only intent to kill suffices for attempted
murder, because

"the intent becomes the principal ingredient of the

crime". 

Intent to cause grievous bodily harm was

sufficient mens rea for the full offence of murder.

 
63

Not guilty

Widdowson, R ^[Attempts - must be more than merely

v (1985) preparatory]

  D gave the name and address of a neighbour because

he was not creditworthy. He wanted to buy a van on
hire purchase. He accidentally signed the form with
 
his own name. D was charged with attempting to
obtain services by deception.

Held: D, in giving false particulars was merely a

preparatory act in order to obtain hire purchase. If the
hire purchase company responded favourably it still
remained for D to seek a hire purchase agreement with
them. D's acts could not be described as immediately
rather than remotely connected with the specific
offence being attempted.

Not guilty

RECENT INDIAN CASE LAWS (Manupatra.com)

. 
64

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65

( 2
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SC
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Case Note: Criminal - Conviction - Sections 3(3), 5 and 6 of Terrorist and Disruptive Activities
(Prevention) Act, 1987 (TADA) - Sections 3 and 7 read with Section 25(1-A)(1-B) (a) of Arms Act
- Section 4(b) of Explosive Substances Act, 1908 - Section 9-B(1) (b) of Explosives Act, 1884 -
Appellant (A-41) had been convicted under TADA, Arms Act, 1908 Act and Section 9-B(1) (b) of
1884 Act - Hence, this Appeal - Whether, Appellant was rightly convicted - Held, for convicting
Accused under above provisions, a person must be in possession of some contraband material,
person must have knowledge of his possession i.e. conscious possession and it should be in notified
area - Once possession was established, burden was on Accused to show that he was not in
conscious possession - It was observed that Appellant (A-41) was well acquainted with AA -
Appellant (A-41) was asked to arrange a garage and hence searched for an appropriate garage with
co-accused - Appellant was introduced to co-accused A-117 at residence of latter - Appellant
witnessed handing over of contraband to co-accused A-117 - Appellant was in conscious possession
of certain contraband items - Recovery of contraband material which was effected upon making of a
disclosure statement by Appellant, took place at a dumping ground for waste - Thus, Designated
Court rightly convicted Appellant (A-41) on basis of evidence - There was no cogent reason to
interfere with decision of Designated Court - Appeal dismissed.Criminal - Conviction - Section 3(3)
and Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) - Designated
Court convicted Appellant under provisions of TADA - Hence, this Appeal - Whether, Appellant
66

was rightly convicted - Held, relevant material by itself did not reveal that A-1 disclosed contents of
bags to Appellant - Since Appellant (A-67) being in possession of contraband material in an
unauthorised manner within notified area and said material being capable of attracting provisions of
Section 5 TADA, it would make Appellant (A-67) liable for commission of offence under Section 5
of TADA - Further, recovery of 2 suit cases containing arms and ammunition was effected by PW.
506 on disclosure of Appellant in presence of PW 37 and from PW-282 - This fact stood fully
proved by conjoint reading of depositions of PW 506, PW 282 and PW. 37 - Thus, there was no
reason to interfere with order passed by Designated Court - Appeal dismissed. Criminal -
Conviction - Section 3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) -
Designated Court convicted Appellant under provisions of TADA - Hence, this Appeal - Whether,
Appellant was rightly convicted - Held, it was evident from evidence on record and findings
recorded by Designated Court that Appellant (A-95) had gone to Dubai at behest of A-65 and
thereafter, to Islamabad in Pakistan for attending training camps and acquired training in handling
arms and ammunition and thereafter, returned to India - As Appellant had obtained training for
commission of terrorist acts, he could not be acquitted of charges under Section 3(3) of TADA -
Hence, there was no force in Appeal - Appeal dismissed.Criminal - Conviction - Sections 3(3) and 5
- Sections 3 and 7 read with Section 25(1-A) & (1-B) (a) of Arms Act, 1959 - Designated Court
convicted Appellant under provisions of TADA and Arms Act - Hence, this Appeal - Whether,
Appellant was rightly convicted - Held, involvement of Appellant (A-123) in offences for which
charges had been found proved against him by Designated Court stood fully established - Appellant
had been given contraband material by A-49 and he (A-123) was fully aware of nature of the
weapon and cartridges - Relevant Panchnama, oral evidence of panch witness (PW-40) and
evidence of PW-600 connected Appellant (A-123) in concealing weapon and ammunition -
Therefore, there was no force in Appeal - However, as provisions of Sections 5 and 3(3) of TADA
provided for a minimum sentence of 5 years, a punishment lesser than prescribed under statute was
imposed - Appeal dismissed.Criminal - Conviction - Sections 3(3) and 5 - Sections 3 and 7 read
with Section 25(1-A) & (1-B) (a) of Arms Act, 1959 - Designated Court convicted Appellant under
provisions of TADA and Arms Act - Hence, this Appeal - Whether, Appellants were correctly
convicted - Held, merely because contraband was recovered from a public place, same did not mean
that recovery was to be discarded - In case, articles had been hidden by digging up earth, covering
67

same up with garbage or other material, public may not have taken note of it - Same remained in
specific knowledge of Accused, i.e. where and also manner in which said articles were hidden -
Moreover, recovery could not be discarded for want of signature of Accused on recovery memo -
Therefore, there was no reason interfered with order passed by Designated Court - Appeal
dismissed.Criminal - Conviction - Sections 3(3) and 5 of Terrorist and Disruptive Activities
(Prevention) Act, 1987 (TADA) - Designated Court convicted Appellant under provisions of TADA
- Hence, this Appeal - Whether, Appellant was rightly convicted - Held, from evidence on record it
was clear that Appellant (A-91) had kept in his possession unauthorisedly weapons at behest of A-
137 - Appellant told his mother-in-law and other family members that goods belonged to his friend
and nobody should open same - Recovery of same at his behest stood proved - Prosecution
successfully proved its case and to that extent he had been convicted by Designated Court - Thus
There was find no cogent reason to interfere with judgment of Designated Court - Appeal
dismissed.Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities (Prevention)
Act, 1987 (TADA) - Designated Court convicted Appellant under provisions of TADA - Hence,
this Appeal - Whether, Appellant was rightly convicted - Held, police party had intercepted and
checked trucks carrying smuggled goods/articles i.e. arms, ammunition and contraband and has,
after negotiating for half an hour, with such party, permitted them to proceed further after receiving
decided bribe amount - Therefore, there was sufficient evidence on record to convict Appellant -
Appeal dismissed.Criminal - Conviction - Sections 3(3), 5 and 6 of Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA) - Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of
Arms Act, 1959 - Designated Court convicted Appellants under provisions of TADA and Arms Act
- Hence, this Appeal - Whether, Appellants were correctly convicted - Held, Appellant's disclosure
statement had been made before police, as well as panch witness - Fact that he did not disclose
place where contraband had been hidden remained entirely insignificant as he had led police party
to said place and that said recovery had been made at his behest - Open space from where recovery
had been made though was accessible to anybody, it must be remembered that contraband had been
hidden and that it was only after digging was done at place shown by Appellant, that such recovery
was made - Hence, it would have been impossible for a normal person having access to said place,
to know where contraband goods were hidden - Thus, Appellant had been fully aware of contents
thereof - Hence, conclusion reached by Designated Court was confirmed - Appeal
68

dismissed.Criminal - Conviction - Terrorist and Disruptive Activities (Prevention) Act, 1987

(TADA) - Criminal - Conviction - Sections 3(3) and 5 - Designated Court convicted Appellant
under TADA - Hence, this Appeal - Whether, Appellants were rightly convicted - Held, There was
no evidence on record to show that Appellant (A-96) was actual owner of flat where meeting took
place - Appellant (A-96) was simply present in next room when meeting was held and she was
asked to serve tea - Further, it was her brother who was well acquainted with AA and after his
death, AA simply gave some money to her family for household expenses and that money was not
for her own personal/individual expenditure - Moreover, while serving them tea she might have
overheard something about a plan that was being formulated by co-accused, but not being a party to
meeting she could not have possibly known or understood plan - There was nothing on record to
show that Appellant (A-96) knew that blasts were going to take place on that day, or that she had
acquired any knowledge that AA would be absconding from India - Moreover, she was not a
participant in any overt act in furtherance of conspiracy - Therefore, Appellant (A-96) was held to
be entitled for benefit of doubt - Appeal allowed.Criminal - Conviction - Section 201 of Indian
Penal Code, 1860 - Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
- Appellant has been convicted under TADA and I.P.C. - Hence, this Appeal - Whether, Appellant
was correctly convicted - Held, conclusion of Designated Court was fortified from confessional
statement of Appellant, as well as from statements of other witnesses - Appellant was most certainly
had close association with AA and with a few other accused persons - Appellant had spent a sum for
disposal of said material - Remnants of RDX were taken from his godown and thrown into Kaman
river - Being in possession of said material for a limited time period, rendered him guilty for
commission of offence under Section 5 of TADA - He was also guilty under Section 201 of I.P.C.,
as even though he may not have been directly involved in disposal of contraband, same was
disposed of upon his instructions and for this, he had paid a huge amount - Therefore, there was no
reason to interfere in impugned order - Appeal dismissed.Criminal - Conviction - Sections 3(3) and
21(2) of Terrorist and Disruptive Activities (Prevention) Act, 1987 - Designated Court convicted
Appellant under provisions of TADA - Hence, this Appeal - Whether, Appellant was rightly
convicted - Held, an Accused under TADA must abate knowingly commission of terrorist act
and/or he must be rendering financial assistance to such an Accused, or could be reasonably
suspected of being such Accused - Further, provision of Section 21(2) of TADA could be resorted
69

to, only in case it was proved by the prosecution that Accused rendered any financial assistance to a
person who had already been facing charge of terrorist or disruptive activities or he had reasons to
suspect that the person to whom financial help had been rendered was indulging in such activities -
Thus, there was a burden on prosecution first to prove aforesaid condition - Moreover, Section 2(1)
(a)(iii) of TADA provided that abet, with its variations and cognate expressions, included rendering
of any assistance whether financial of otherwise, to terrorists or disruptionists - There was nothing
on record to show that any person could imagine what AA was planning - Similarly, it was only
after date of Bombay blast, that provisions of TADA could be attracted - Thus, Appellant (A-97)
could not be held to be guilty under said provisions - Appeal allowed.Criminal - Conviction -
Sections 3(3) and 5 - Sections 3 and 7 read with Section 25(1-A) & (1-B) (a) of Arms Act, 1959 -
Designated Court convicted Appellant under provisions of TADA and Arms Act - Hence, this
Appeal - Whether, Appellant was rightly convicted - Held, it was evident that a pistol had been sold
by A-39 to Appellant (A-122), and that it had been Accused (A-39), who had taught Appellant how
to use cartridges - It was also evident that recovery had been effected on basis of disclosure
statement made by Appellant, as had been deposed by panch witness (PW-39) - Designated Court,
after appreciation of evidence, had held that though Appellant had been in possession of arms and
ammunition in an unauthorized manner, same did not in any way, show complicity of Accused in
conspiracy relating to blast - Therefore, there was no cogent reason to interfere with order passed by
Designated Court - Appeal dismissed.Ratio Decidendi"Conviction shall not be imposed unless there
is sufficient material to prove guilt of Accused."

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70

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Case Note: Criminal - Cognizance of offence - TADA (P) Act, 1987 - Criminal Procedure Code,
1973 (CrPC) - High Court passed order of conviction against Appellants/Accused for offences
under Section 3(3) of and Section 120-B of Indian Penal Code, 1860/Sections 3(2)(i)(ii), 3(3), (4),
5 and 6 of Act/Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code, 1860
- Hence, this Appeal - Whether, Course adopted by Trial Court was justified - Held, legislature
deliberately used words "after taking cognizance of any offence" to mean that Section 18 of CrPC
would be attracted only at stage where Designated Court took cognizance of offence i.e. after
investigation was complete and charge-sheet was filed - In Section 209 of CrPC, words "after
taking cognizance" were absent conspicuously - On other hand, Section 18 of CrPC was filtered
provision and was attracted only at stage Designated Court took cognizance of offence - It was at
stage of taking cognizance, Designated Court was expected to scan documents and evidence
collected therewith - If Designated Court was of opinion that offence was not triable by it, it should
then, notwithstanding that it had no jurisdiction to try such offence, transfer case for trial of such
offence to any court having jurisdiction under CrPC - Accordingly, at time of taking cognizance by
Designated Court, there were sufficient evidence against Appellants to proceed against them in
joint trial - In case of Mr. SD, Designated Court took view on basis of his own confession that
weapons were not acquired for any terrorist activity but they were acquired for self-defence,
therefore, acquittal was recorded in respect of charge under Section 5 of TADA - Hence,
conclusion arrived at by Designated Court was justified and course adopted by trial Court was
correct - Appeal dismissed Criminal - Acquittal - TADA (P) Act, 1987 - Whether, order of
acquittal rendered by Designated Court was justifiable or required interference - Held, mere
recoveries of a 9mm pistol and rounds from bungalow of A 120 would not be sufficient to connect
him with the articles - Further, it was settled law that recoveries made must be found to have been
made as consequence to statement made by Accused in custody - If nexus in between was not
74

established, statement made would be inadmissible in evidence - Designated Court, after

considering well settled principles and materials placed concluded that it was necessary to say that
scrutiny of evidence also did not reveal A-120 having purchased.9mm pistol and rounds -
Designated Court had also concluded that even if statement made by A-125 was acceptable, in
absence of any supporting oral and documentary evidence and taking note of improvement made
by panch witness as well as in statements of witnesses stage by stage there was no evidence to
connect A-120 with relevant contraband articles - Hence, in light of categorical finding by trial
Court and after analyzing materials placed by the prosecution, with insufficient evidence, order of
acquittal could not be lightly interfered - Appeal dismissed. Criminal Appeal No. 1104 of 2007
Criminal - Recording of confession - TADA (P) Act, 1987 - Whether, there was flaw in procedure
while recording confession of Appellant - Held, CBI successfully placed materials to show that
Appellant was responsible for arranging garages for storage of weapons - Further, in confessional
statement of A-41, in categorical terms it was asserted that A-53/Appellant, along with A-41 and
A-139 searched for garages in Pali Hill areas, where weapons could be off loaded and after that
they were to be distributed to various persons - Moreover, confessional statement of A-41 also
showed that Appellant helped co-accused persons to look for garages - Thereby, it could not be
claimed that at no point of time A-53 was ever aware of what was to be stored in garages -
Consequently, Designated Court, on going through evidence of officer who recorded his
confession, procedure followed, opportunity given to Appellant, rejected similar objection raised
before him - Hence, reasoning of Special Judge was justified and there was no flaw in the
procedure while recording confession of Appellant - Appeal dismissed. Criminal Appeal No. 1001
of 2007Criminal - Conviction - TADA (P) Act, 1987 - Whether, conviction of Appellant/Accused
by Lower Courts was justified - Held, Designated Court convicted Appellant under Section 3(3)
and Section 6 of TADA only on basis of confessional statement of A-89 and evidence of PW-283 -
Admittedly, Appellant, at no point of time, had made any confession admitting her guilt - Equally,
it was not in dispute that no recovery was affected from her house - Only incriminating
circumstance against Appellant was statement of A-89 that while handing over plastic bag, he
mentioned that it contained AK-56 rifle and other arms - Apparently, there was no case insofar as
main conspiracy against Appellant and Designated Court had rightly acquitted her of main charge -
However, upon perusal of entire evidence, judgment passed by Designated Court was upheld to
75

extent of Charge secondly and fourthly - Hence, in view of minimum sentence of 5 years
prescribed under Sections 3(3) and 6 of TADA, conviction was confirmed and sentence as awarded
by Designated Court was justified - Appeal dismissed. Ratio Decidendi"Recoveries made must be
found to have been made as consequence to statement made by Accused in custody for
conviction."

.  Subramanian Swamy vs . A . Raja ( 24 . 08 . 2012 - SC )

Case Note: Criminal - Criminal conspiracy - Sections 120B, 420, 468, 471 of Indian Penal

Code, 1860 (IPC) and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act,
1988 - Special Judge found Shri P.C. had no role in subversion of process of issuance of LOI,
UAS Licences and allocation of spectrum in year 2007-08 and that he was acting in pursuant to
criminal conspiracy and rejected prayer to make him Accused - Hence, this Application -
Whether, alleged acts on part of Shri P.C. fell within scope of Section 13(1)(d)(i) to (ii) of Act
and materials on record were sufficient to conclude so - Held, Shri P. C. and Shri A. R. met
twice for resolving then outstanding issues relating to allocation and pricing 2G and 3G
Spectrums and meeting of two Ministers would not by itself be sufficient to infer existence of
conspiracy - Further, Criminal conspiracy could not be inferred on mere fact that there were
official discussions between officers of Ministry of Finance and that of Department of Telecom
and between two Ministers, which were all recorded - Suspicion, however strong, could not take
place of legal proof and meeting between Shri P.C. and Shri A.R. would not by itself be
sufficient to infer existence of criminal conspiracy so as to indict Shri P.C. - So, wrong
76

judgment or inaccurate or incorrect approach or poor management by itself, even after due
deliberations between Ministers or even with Prime Minister, by itself could not be said to be a
product of criminal conspiracy - Consequently, materials on record did not show that Shri P.C.
had abused his position as Minister of Finance or conspired or colluded with Shri. A.R. so as to
fix low entry fee by non-visiting spectrum charges fixed - No materials were also made
available even for prima facie conclusion that Shri P.C. had deliberately allowed dilution of
equity of two companies in question - Lastly, no materials was available even prima facie to
conclude that Shri P.C. had abused his official position, or used any corrupt or illegal means for
obtaining any pecuniary advantage for himself or any other persons, including Shri A.R. -
Hence, Shri P.C. was not acting in pursuant to criminal conspiracy - Special Leave Petition
(Crl.) No. 1688 of 2012 dismissed - I.A. No. 34 of 2012 in Civil Appeal No. 10660 of 2010
dismissed.

. 

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77

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78

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Case Note: Criminal - Bail - Murder - Criminal conspiracy - Sections 34, 120B, 302 of the Indian
Penal Code, 1860 - Appellants surrendered and prayed for the bail - Prayer was rejected by the
Sessions Judge - Sessions Judge dismissed their bail applications - High Court also dismissed
their bail applications -Hence, the present appeal - Held, Sessions trial had almost come to an end
and there were only few more witnesses to be examined - Appellants were politically influential
and financially strong and are capable of influencing the witnesses- Further, there is every
likelihood of their fleeing from the judicial process -It will not be possible to release the accused
on bail at this stage - Appeals dismissed
79

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Case Note: Criminal - Conspiracy - Possession of Fake Passport - Conviction thereof - Challenge
against thereto - High Court confirmed conviction of Appellants under Sections 120B, 419 and
420 Indian Penal Code, 1860 (IPC) and other provisions including under Section 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act, 1988 - Hence the Appeal - Held, Held,
Evidence available on record clearly established that A-8 participated in conspiracy in securing
passport - Evidence of P.W.-7, P.W.-8 and P.W.-14 was cogent and consistent which in clear and
categorical terms proved fact that A-5 verified passport application particulars of Sana Malik
Kamal and submitted exhibit P15 inquiry report along with Exh. P16 and Exh. P17 enclosures
and submitted false report - Monica Bedi/Appellant herein was involved in the conspiracy as
proved at both stages i.e. pre and post-passport application stage - Conspiracy itself was hatched
only with a view to secure a passport for Monica Bedi in the assumed name of Sana Malik Kamal
- Sequence of events as unfolded by the evidence do not recapitulate as noticed by the court -
Charges leveled against the Appellant stood clearly proved - Conviction of the Appellant for the
offence punishable under Sections 120B, 419 and 420 IPC upheld - It was for Appellants benefit
81

that the entire conspiracy was hatched involving more than one individual in order to secure a
passport for her benefit enabling her to travel abroad in the assumed name of Sana Malik Kamal -
Appeals accordingly partly allowed

.  Monica Bedi vs . State of A . P . ( 09 . 11 . 2010 - SC )

Case Note: Criminal - Conspiracy - Possession of Fake Passport - Conviction thereof -

Challenge against thereto - High Court confirmed conviction of Appellants under Sections 120B,
419 and 420 Indian Penal Code, 1860 (IPC) and other provisions including under Section 13(1)
(d) read with Section 13(2) of Prevention of Corruption Act, 1988 - Hence the Appeal - Held,
Held, Evidence available on record clearly established that A-8 participated in conspiracy in
securing passport - Evidence of P.W.-7, P.W.-8 and P.W.-14 was cogent and consistent which in
clear and categorical terms proved fact that A-5 verified passport application particulars of Sana
Malik Kamal and submitted exhibit P15 inquiry report along with Exh. P16 and Exh. P17
enclosures and submitted false report - Monica Bedi/Appellant herein was involved in the
conspiracy as proved at both stages i.e. pre and post-passport application stage - Conspiracy
itself was hatched only with a view to secure a passport for Monica Bedi in the assumed name of
Sana Malik Kamal - Sequence of events as unfolded by the evidence do not recapitulate as
noticed by the court - Charges leveled against the Appellant stood clearly proved - Conviction of
the Appellant for the offence punishable under Sections 120B, 419 and 420 IPC upheld - It was
82

for Appellants benefit that the entire conspiracy was hatched involving more than one individual
in order to secure a passport for her benefit enabling her to travel abroad in the assumed name of
Sana Malik Kamal - Appeals accordingly partly allowed

.  Pratapbhai Hamirbhai Solanki vs . State of Gujarat and Anr .

( 12 . 10 . 2012 - SC )

Case Note: Criminal - Bail - Sections 302, 201 and 120-B of Indian Penal Code, 1860 - Sections
25(1)(b) and 27 of Arms Act, 1959 - High Court rejected prayer of Appellant for bail for offences
punishable under provision of I.P.C. and under Act - Hence, this Appeal - Whether Appellant was
entitled to grant bail - Held, it was case of conspiracy and ingredients of offence were that there
should be agreement between persons who were alleged to conspire and said agreement should be
for doing illegal act or for doing by illegal means act which itself would not be illegal - Thus
essence of criminal conspiracy was agreement to do illegal act and such agreement would be
proved either by direct evidence or by circumstantial evidence or by both - However in this case,
it was highlighted that in case of conspiracy there would not be any direct evidence - Therefore
circumstances proved before, during and after occurrence had to be considered to decide about
83

complicity of Accused - Further there was no denial of fact that deceased was activist and
extremely keen in exposing certain matters which pertain to illegal mining and many other such
arenas - Even on perusal of order, it was demonstrable that High Court had expressed its
dissatisfaction with regard to investigation conducted by investigating agency - Therefore it had
directed C.B.I. to expeditiously undertake further investigation - Hence Court had not expressed
our final opinion on entitlement of Appellant to be released on bail or not because of subsequent
development i.e. direction by High Court for comprehensive investigation by C.B.I. - Appeal
disposed of.Ratio Decidendi "Bail cannot be granted to Accuse, unless there is sufficient ground
to grant bail."

.  Shri Rajendra Ramchandra Kavalekar vs . State of Maharashtra and

Anr . ( 23 . 01 . 2009 - SC )

Case Note: Criminal - Territorial jurisdiction - Cause of action - Sections 120, 420, 461, 465,
467, 468, 471, 473 and 476 of Indian Penal Code, 1860 - Sections 154, 156(3), 162, 177 and 178
of Code of Criminal Procedure, 1973 - Appellant was the Accused No. 1 in case registered by
C.B.I, SPE, Ranchi in State of Jharkhand for offence of criminal conspiracy with the officials of
the Ranchi University for obtaining fake degree certificates under IPC and Prevention of
Corruption Act - Appellant filed Criminal Writ Petition before High Court of Bombay for
84

quashing proceedings pending in Ranchi - Writ Petition dismissed on the ground that criminal
proceedings were pending before Special Judge (CBI) Ranchi and all documents pertaining to
case in custody and possession of Special Judge (CBI), Ranchi - Hence, present appeal -
Appellant contended that since the part of the cause of action has arisen in the State of
Maharashtra, the High Court of Judicature at Bombay has the jurisdiction to entertain the Writ
Petition - Held, territorial jurisdiction of a Court with regard to criminal offence would be
decided on the basis of place of occurrence of the incident and not on the basis of where the
complaint was filed and the mere fact that FIR was registered in a particular State is not the sole
criterion to decide that no cause of action has arisen even partly within the territorial limits of
jurisdiction of another Court - In the complaint filed by CBI, Ranchi, it is specifically alleged
that the Appellant had entered into criminal conspiracy with the officials of the Ranchi
University and had obtained fake degree certificates - A Court trying an Accused for an offence
of conspiracy is competent to try him for all offences committed in pursuance of conspiracy
irrespective of the fact that any or all the other offences were not committed within the territorial
jurisdiction - Cause of action arose within jurisdiction of Special Judge (CBI), Ranchi -
Investigation completed in Ranchi - All records and the documents pertaining to complaint and
the charge sheet are before the Special Judge (CBI), Ranchi - High Court of Judicature at
Bombay was perfectly justified in declining to entertain the Writ Petition filed by the Petitioner -
Appeal dismissed

  State of Maharashtra through CBI vs . Ahmad Shah Khan @ Salim

Durani and Anr . ( 21 . 03 . 2013 - SC )
85

Case Note: Criminal Appeal No. 1728 of 2007Criminal - Conviction - Section 5 of Terrorist and
Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted Appellant i.e A-
20 under Section of TADA and awarded sentence for keeping one AK-56 rifle plus two empty
magazines with him - Hence, this Appeal - Whether, Special Judge rightly held A-20 guilty for
offence under Section 5 of TADA - Held, there was sufficient material to show that recovery had
been made at behest of Appellant (A-20) from factory owned by a partnership to which he was
partner alongwith one Surjit Singh - Thus, in such a fact-situation, A-20 ought to had explained
reason/source of his knowledge of such contraband articles being kept in his factory - Moreover,
fact that A-20 did not have key become totally redundant, as no conclusion could be drawn that
A-20 was not in possession of said premises - Thus, in such a fact-situation, it could not be held
that A-20 was not in conscious possession of contraband material - Furthermore, panch witness
PW-72 could not be held to be a tutored witness or acting at behest of prosecution only on
ground that he had also been witness in another case - However, PW-72 was not an independent
witness, or acting under pressure of police as he was carrying business illegally without any
license - Thus, A-20 had made disclosure statement in his presence and PW-72 could explain
same and therefore, it could not be held that PW-72 was deposing falsely - Moreover, Law did
not require witness to corroborate evidence of an independent witness and thus, evidence of PW-
72 duly corroborated by contemporaneous panchnama was trustworthy - Hence, Special Judge
rightly held A-20 guilty for offence under Section 5 of TADA - Appeal dismissed.Criminal -
Conviction - Section 5 of Section and Section of Terrorist and Disruptive Activities (Prevention)
Act, 1987(TADA) read with Section 25(1-A)(1-B)(a) of Arms Act - Special Judge convicted
Appellant i.e A-21 under Section , and of TADA read with Section 25(1-A)(1-B)(a) of Arms Act
- Hence, this Appeal - Whether, order of conviction passed by Special Judge against A-21 was
justified - Held, since criminal conspiracies was hatched in secrecy and it was extremely difficult
to collect direct evidence about same - However, established principles of law indicated that
standard of a proof requiring such type of cases was loosened, unnecessary hard standards
regarding identity of a particular person could not be expected - Thus, considering in proper
86

perspective all evidences, no other conclusion would emerge of A-21 and thus concluded that he
had committed all offences for which he was charged with on account of commission of overt
acts - Hence, Special judge was justified in convicting A-21 for guilty of offences under Section
5, 3 and 7 of TADA read with Section 25(1-A)(1-B)(a) of Arms Act - Appeal
dismissed.Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities
(Prevention) Act, 1987(TADA) and Rule 15 of TADA Rules, 1987 - Special Judge convicted
respondents A-20 and A-21 for guilty of offences under Section 3(3) TADA, and acquitted of
main charge of conspiracy - Hence, this Appeal - Whether, Special Judge rightly held A-20 and
A-21 guilty for offences offences under Section 3(3) TADA - Held, Special Judge completely
discarded confessional statements of A-20 , A-21, A-48 and A-80, on ground that all
confessional statements had been recorded by Police officer in utter disregard to mandatory
provisions of Section 15 of TADA and Rule 15 of TADA Rules - Further, police officer failed to
inform accused persons while recording their respective statements that they was not bound to
make confessional statement and further failed to warn that, in case, they made statements, same
would be used as evidence against them - Moreover, required certificate was not attached to said
statements - Thus, there was no legal evidence which could be relied upon by prosecution was
available on record - Hence, Special Judge rightly held A-20 and A-21 guilty for offences
offences under Section 3(3) TADA - Appeal dismissed.Criminal Appeal No. 1311 of
2007Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities (Prevention)
Act, 1987(TADA) - Special Judge convicted A-31 under Section 3(3) of TADA - Hence, this
Appeal - Whether, conviction of A-31 held by Special Judge was correct - Held, Confessional
statement of A-128 revealed that he participated in landing alongwith co-accused brought
smuggled goods at Seashore and they found that two tempos was already parked there and one
tempo was being driven by A-31 - Further, smuggled goods was being loaded in both tempos
and as Tiger Memon (AA) opened sacks, accused A-128 saw that it contained rifles, bullets,
hand-grenades and bags containing black coloured powder in it and those tempos was unloaded
at a building with a tower - Moreover, one application under Section 457 of Cr.PC, was filed by
A-31 before Special Judge for release of tempo and same was allowed - However, court passed
order that vehicle should be thoroughly examined by experts as to whether it contained any
traces of RDX - Thus, it was in view thereof, that report detected traces of RDX and it was
87

corroborated by panch witness, PW-602 - Therefore, Special Judge came to conclusion that
considering confessions of A-64 and A-128, as well as statement made by PW-2 there could be
no conclusion other than fact that A-31 was involved in Shekhadi landing and transportation
operation - Hence, conviction of A-31 held by Special Judge was correct - Appeal
dismissed.Criminal Appeal No. 417 of 2011Criminal - Acquittal - Section 3(3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted A-31 main
charge under Section 3(3) of TADA but had been acquitted of charge of conspiracy - Hence, this
Appeal - Whether, Special Judge rightly acquitted A-31 from charge of conspiracy - Held, from
evidence on record, it was cleared that A-31 had participated in landing operation of contraband
goods at Shekhadi as he was one of persons who accompanied AA and Others - Further, A-31
had also been to Wangni Tower alongwith other associates and contraband material was loaded
in tempo - Moreover, tempo was taken by him alongwith absconding accused to Mumbra as
instructed by AA and this version was duly corroborated by A-128 and by evidence of PW-2 -
However, there was nothing on record to show that he was aware as of what kinds of contraband
were being transported in his tempo - Hence, Special Judge rightly acquitted A-31 from charge
of conspiracy - Appeal dismissed. Criminal Appeal No. 1610 of 2011 and Criminal Appeal No.
398 of 2011Criminal - Acquittal - Sections 3(3) and Section of Terrorist and Disruptive
Activities (Prevention) Act, 1987(TADA) - Special Judge convicted A-30 under Sections 3(3)
and of TADA and acquitted of first charge of larger conspiracy - Hence, this Appeal - Whether,
Special judge rightly acquitted A-30 of first charge of conspiracy - Held, from evidence on
record it was cleared that A-30 was not only a close associate of AA and acting as a landing
agent, but a man of confidence who could negotiate with police and customs officials to fix
amount of bribe for facilitating smuggling and transportation of smuggled contraband - Further,
A-30 was a person who had negotiated with police and had been fully aware of nature of
contraband, and in spite of knowing that contraband contained arms, ammunition and
explosives, he continued to help smugglers - However, it was also evident that A-30 had close
association with A-82, officer of customs department, who had been helping smugglers by
taking a bribe through A-30 - Thus, Special Judge without taking proper evidence on record
wrongly acquitted A-30 of first charge of larger conspiracy - Criminal Appeal No. 1610 of 2011
- Appeal dismissed, Criminal Appeal No. 398 of 2011- Appeal allowed.Criminal Appeal No.
88

1420 of 2007 and Criminal Appeal No. 1031 of 2012Criminal - Conviction - Section 3(3) of
Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted A-
46 under Section 3(3) of TADA an acquitted of charge of larger conspiracy - Hence, this Appeal
- Whether, A-46 was rightly acquitted of charge of larger conspiracy - Held, Special Judge after
appreciating entire evidence on record came to conclusion that A-46 actively participated in
Shekhadi landing and transportation operation of contraband goods i.e. AK-56 rifles,
ammunition, RDX etc and smuggled into country by AA - Further, confession of A-46 revealed
that he was in employment of AA family - However, A-46 had been to Shekhadi landing, it
could not be accepted that A-46 was not aware of illegal business of AA or about nature of
contrabands smuggled into India - Thus, presence of A-46 at place where goods was exchanged,
at Wangni Tower and concealed into cavities of vehicles for transportation to Bombay, showed
that he was a person of very close confident of Tiger Memon AA - Further, A-46 handed over a
motor vehicle containing arms and ammunitions at residence of A-68 - Moreover, confessions of
co-accused established involvement of A-46 along with A-10 for taking co-accused persons,
who was sent for training to Pakistan via Dubai, though A-46 would not be aware of purpose for
which co-accused was sent to Dubai - Hence, A-46 rightly acquitted by Special Judge - Appeal
dismissed.Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities
(Prevention) Act, 1987(TADA) - Special judge convicted A-18 has been convicted on two
counts under Section 3(3) of TADA - Hence, this Appeal - Whether, Special Judge rightly held
A-18 guilty for offences charged under Section 3(3) of TADA - Held, there was sufficient
evidence to showed that A-18 was involved in transportation of contraband - Further, after
taking into consideration evidence on record, it could not be inferred that despite being a close
associate of AA, A-18 remained unaware of nature of contraband - Furthermore, when a person
had been transporting goods for a long period of time it was difficult to believe that he would
transport said goods, without ascertaining exact nature of goods being loaded into his vehicle,
particularly in view of fact that vehicle was likely to be checked at several places by police, as
well as by custom officials - Thus, Special Judge rightly held A-18 guilty for offence charged
under Section 3(3) of TADA - Appeal dismissed.Criminal - Conviction - Section 3(3) of
Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special judge convicted A-
28 has been convicted on two counts under Section 3(3) of TADA - Hence, this Appeal -
89

Whether, A-28 had rightly been convicted under Section 3(3) TADA by Special Judge - Held,
Special Judge rightly held A-18 guilty for offences charged under Section 3(3) of TADA - Held,
A-28 in his confessional statement which stands corroborated by confessional statements of
other co-accused, particularly, A-11, A-15, A-17 and A-128 revealed his involvement in
Shekhadi landing - Further, established that A-28 had been fully aware of nature of contents of
contraband and had still transported same - Thus, such an act tantamounts to furthering object of
conspiracy to commit terrorist acts - Therefore, taking into consideration his close association
with AA and his associates, with respect to their smuggling activities, it was difficult to believe
that A-28 was unaware of nature of contents - Hence, A-28 had rightly been convicted under
Section 3(3) TADA by Special Judge - Appeal dismissed.Criminal - Conviction - Section 3(3) of
Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special judge acquitted A-
61 of first charge of conspiracy and convicted of second charge under Section 3(3) of TADA -
Hence, this Appeal - Whether, A-61 had rightly been convicted by Special Judge under Section
3(3) of TADA - Held, Special Judge rightly held A-18 guilty for offences charged under Section
3(3) of TADA - Held, A-61) being involved in Shekhadi landing operation, had committed
offence under Section 3(3) of TADA - Further, A-61 was a close associate of A-14 and had
participated and assisted A-14 in effecting said landing - Moreover, A-61 had also taken A-14
and his other associates to Shekhadi coast, at odd hours of night for purpose of landing operation
- However, even prior to said landing, A-61 had been involved in concealment of rifles and
magazines at residence of A-25, and thereafter had transported rifles and magazines from house
of A-25 and had handed over same to AA and had also received an amount for work done by
him in landing operation - Thus, evidence on record established fact that A-61 was one of main
persons who was responsible for effecting said landing - Hence, A-61 had rightly been convicted
by Special Judge under Section 3(3) of TADA - Appeal dismissed.Criminal - Conviction -
Section 3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special
Judge convicted A-61 under Section 3(3) of TADA and hds been acquitted of general charge of
conspiracy - Hence, this Appeal - Whether, A-61 rightly had been acquitted by Special Judge -
Held, it was evident that A-61 was not allowed to enter into Wangni tower and thus he had no
knowledge that arms had been smuggled into India to be used in Bombay Blast - Further, it was
evident that arms was kept in house of Muzammil, and arms and ammunition had been
90

transported in vehicle belonging to Muzammil and not in vehicle of A-61 - Thus, there was
nothing on record to show that A-61 had participated in loading and unloading of same -
However, A-61 rickshaw had been used for carrying accused persons and A-61 had transported
arms, i.e. 3 rifles and 6 cassettes alongwith Dawood Taklya from house of Muzammil which was
subsequently taken from him by AA - Thus, A-61 had been found guilty on single count of
participating in landing on two occasions and additionally of being involved in concealment of
arms and ammunition at house of A-25 and further for transportation of some arms from house
of A-25 and handing over same to AA - Hence, A-61 rightly had been acquitted by Special
Judge - Appeal dismissed.Criminal - Conviction - Section 3(3) of Terrorist and Disruptive
Activities (Prevention) Act, 1987(TADA) - Special Judge convicted A-110 under Section 3(3)
of TADA - hence, this Appeal - Whether, - Held, landing of contraband material took place at
Dighi Jetty during night time and goods was transported from said Jetty in two trucks and said
contraband contained arms and ammunition, AK-56 rifles and bullets etc - Further, police party
of Shrivardhan had intercepted convoy carrying said contraband and it was held that confessions
of co-accused and PW-97 revealed identity and involvement of A-110 in landing episode -
However, it was further held that A-110 was member of police party headed by his superior A-
116 and though A-110 could not be said to be responsible for taking decision of permitting
further transportation of said goods - Thus, taking into account fact that A-110 had not reported
about A-116 to higher officials, revealed that he had also connived with A-116 in performing
said acts - Hence, A-110 was guilty foe offence under Section 3(3) of TADA - Appeal
dismissed.Criminal Appeal No. 171 & 172 of 2008Criminal - Conviction - Section 3(3) of
Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge acquitted A-
99 of first charge of conspiracy and had convicted under Section 3(3) of TADA - Hence, this
Appeal - Whether, - Held, Special Judge held that police party of Shrivardhan had intercepted
convoy carrying said contraband near Gondghar Phata and entry in log book of police jeep had
revealed that same had been driven by A-99, and this had not been disputed by A-99 - Thus, it
was clear that A-99 had been driving said police jeep when party was headed by A-116 -
Further, it had been held that confessions of co-accused and of PW-97 revealed involvement of
Appellants in landing episode - Moreover, A- taking into account fact that they had not reported
A-116 behaviour to higher officials, and further, recovery of a large amount of money from
91

them, revealed that they had also connived with A-116 to commit the said acts - Thus, they was
liable under Section 3(3) of TADA - Furthermore, as A-116 was primarily responsible for
decision taken by police party and also for handling of negotiations, A-99 could not be held
guilty for commission of offence of conspiracy, as they were acting in accordance with
instructions and directions of A-116 - Hence, Special Judge righty acquitted A-99 of first charge
of conspiracy - Appeal dismissed.Criminal Appeal No. 1029 of 2012Criminal - Acquittal -
Special Judge acquitted Respondent of charge of conspiracy - Hence, this Appeal by State -
Whether, Respondent was guilty of offense of charge of conspiracy - Held, confession of A-85
and co-accused same leads to conclusion of A-85 though was not involved in Shekhadi landing
operation Respondent was involved in allowing his place i.e. godown of his father for storing
explosive substances in large quantities - However, considering manner in which A-85 had
figured in commission of relevant acts it would become difficult to come to conclusion that he
was involved in conspiracy for which charge at head firstly was framed - Thus, Respondent was
not guilty of said offence due to not only paucity of evidence for same but his involvement being
not even spelt for same - Hence, Court did not find reason to interfere with judgment of
Designated Court - Appeal dismissed.Criminal Appeal No. 207 of 2008Criminal - Conviction -
Section 3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special
Judge convicted A-131 under Sections 3(3) of TADA - Hence, this Appeal - Whether,
conviction of Appellant under Section 3(3) of TADA was justified - Held, it was evident that A-
131 was son of A-17 who was a close associate of AA and indulged in smuggling activities and
participated and facilitated in landing and transportation of contraband - Further, A-131 had
participated in purchasing gunny bags as well as in transportation and had been fully aware of
contents therein as was evident from deposition of PW. 2 - Moreover, A-131 knew that gunny
bags contained AK-56 rifles, handgranades, arms etc. and purchased gunny bags in fake name of
non-existing person twice - Thus, gunny bags was used to carry arms which was smuggled to
India and transported to Bombay - Hence, conviction of A-131 under Section 3(3) of TADA was
justified - Appeal dismissed.Criminal Appeal No. 415 of 2011Criminal - Acquittal - Section 3(3)
of Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted
Respondent under Section 3(3) of TADA and awarded rigorous imprisonment but had been
acquitted of general charge of conspiracy - Hence, this Appeal by State - Whether, Respondent
92

was guilty of offense of charge of conspiracy - Held, as accused A-131 had not transcended
beyond acts and there was no other overt act, thus, it was difficult to hold that Respondent was
involved in conspiracy - Further, there was nothing to show that Repondent committed any act
furthering object of conspiracy, beyond rendering assistance to operation organized by his father
alongwith other partners - Therefore, Respondent was given benefit of doubt regarding said
charge and was held not guilty of conspiracy - Moreover, identity of A-131 had not been fully
disclosed by some of accused and witnesses and even PW. 2 who had involved Respondent in
many activities did not mention his name in confessional statement given by him - Further, PW.
2 clarified in cross examination that he could not give any reason for not mentioning name of A-
131 in his confessional statement - Hence, Respondent become entitled to benefit of doubt -
Appeal dismissed.Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities
(Prevention) Act, 1987(TADA) - Special Judge convicted A-90 for guilty of charge under
Section 3(3) of TADA - Hence, this Appeal - Whether, - Held, evidence on record leads to
conclusion that A-90 had participated in meetings held at Hotel Persian Darbar in connection
with landings - Further, A-90 accepted a huge amount of money as his share of illegal
gratification from co-accused A-102 permitting other accused persons for landing and part of
same had been recovered from A-90 - Moreover, A-90 also participated in meeting at Hotel Big
Splash, wherein A-17 and AA was present and therein negotiations took place for Shekhadi
landing and thus, involvement of Appellant become apparent -However, evidence further
disclosed that landings contained contraband goods i.e. sophisticated arms, ammunition and
explosives and same could not be used for any purpose other than commission of terrorist acts -
Hence, Court did not find reason to interfere with judgment of Designated Court - Appeal
dismissed.Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities
(Prevention) Act, 1987(TADA) - Special Judge convicted A-113 under Section 3(3) of TADA
but had been acquitted of general charge of conspiracy - Hence, this Appeal - Whether, Special
Judge rightly convicted A-113 under Section 3(3) of TADA - Held, evidence on record clearly
showed involvement of A-113 in landing and his role was same as that of A-82 as was
responsible to prevent any smuggling, rather he had indulged in that and accepted bribe
permitting smugglers to bring not only gold and silver but also arms, ammunition and explosives
- Further, fact of investment of money taken by A-113 as illegal gratification stood proved by
93

evidence of PW-165 and PW-149 and A-113 could not furnish any satisfactory explanation for
such investment - Hence, Special Judge had rightly reached conclusion so far as his involvement
in offence punishable under Section 3(3) of TADA was concerned - Appeal dismissed.Criminal
- Charge of Conspiracy - Section 3(3) of Terrorist and Disruptive Activities (Prevention) Act,
1987(TADA) - Special Judge convicted A-82 under Section 3(3) of TADA - Hence, this Appeal
- Whether, A-82 could be held guilty of charge of larger conspiracy - Held, A-82 was guilty of
facilitating landings and transportation as being a Customs Inspector, A-82 was recipient of a
bribe amount - Further, A-82 had conversations with AA and had further allowed A-30 to drive
a customs car - However, as A-82 was an officer of a lower rank in Customs Department, it was
his superior officers who was actually involved in conspiracy - Thus, A-82 involvement was to
extent of offence punishable under Section 3(3) of TADA, which includes conspiracy to a
certain extent, as well as of offences punishable under IPC, Explosives Act, Explosives
Substances Act and Arms Act etc - Hence, despite fact that A-82 himself had been involved in
abetting landing and transportation of contraband, he could not be held guilty of larger
conspiracy - Appeal dismissed.Criminal - Charge of Conspiracy - Section 3(3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted A-90 under
Section 3(3) of TADA - Hence, this Appeal - Whether, A-90 could be held guilty of charge of
conspiracy - Held, act committed by A-102, A-90, A-113 and A-82 being primarily for receipt
of bribe amount by misusing/abusing their official position would definitely fall out of sphere of
conspiracy for which relevant operation was organized and effected by other co-conspirators for
commission of terrorist act - Further, conspirators always join conspiracy or become members of
conspiracy due to being interested in either furthering object of conspiracy or achieving object of
conspiracy - Moreover, payment of money for commission of act which would have a semblance
of furthering object of conspiracy would still not make concerned liable for offence of
conspiracy - However, act committed by them would be for purposes of receiving said payment
and not mainly for furthering object of conspiracy - Thus, such acts as ruled earlier would
amount to commission of offence of an abetment or assistance etc. for commission of terrorist
act by other conspirators and they could be held liable for same but still they could not be said to
be involved in conspiracy - Hence, none of A-102, A-90, A-113 and A-82 could be said to be
guilty for commission of offences of conspiracy for which charge at head firstly was framed
94

against them - Appeal dismissed.Criminal - Charge of Conspiracy - Section 3(3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted A-113 under
Section 3(3) of TADA - Hence, this Appeal - Whether, A-113 could be held guilty of charge of
conspiracy - Held, since case of A-113 was more so over akin regarding his liability to Shekhadi
landing with that of A-82 as both of them was at Shekhadi coast for same reason of which A-82
had been found guilty for commission of offence under Section 3(3) of TADA, thus, A-113
would be required to be held guilty - Further, evidence pertaining to receipt of bribe amount
and/or recovery of same during course of investigation and as tabulated about was not
threadbare discussed - Thus, on basis of all material surfaced at trial A-113 would be required to
be held guilty for commission of offence under Section 3(3) of TADA Act - Hence, similarly as
that of A-82 or even A-102, A-113 could not be held guilty for offence of conspiracy for which
he was charged with - Appeal dismissed.Criminal appeal No. 1423 of 2007Criminal - Charge of
Conspiracy - Section 3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA)
- Special Judge convicted A-128 under Section 3(3) of TADA - Hence, this Appeal - Whether,
A-128 could be held guilty of charge of conspiracy - Held, A-128 being involved in Shekhadi
landing operation as had been denoted by said material and had thus committed an offence under
Section 3(3) of TADA - Further, confession of A-128 revealed that during course of said
operation he became fully aware of nature of contraband goods i.e., same being arms and
ammunition - Moreover, A-128 being taken to Bombay for execution of said operation, and
thereafter being sent to Dubai for training denotes that A-128 was a man in whom AA had
confidence, as he did in other conspirators - Since, A-128 committed relevant acts much before
main conspiracy and had not participated in any meetings or committed any acts in furtherance
of main conspiracy, thus, A-128 could not be held guilty for offence of larger conspiracy but
was required to be held guilty for conspiracy to commit terrorist acts - Hence, no evidence on
record was brought before Court to interfere with judgment of Special Judge - Appeal
dismissed.Criminal Appeal No. 1032 of 2012Criminal - Acquittal - Section 3(3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge acquitted A-128 of charge
of conspiracy - Hence, this Appeal by state - Whether, A-128 could be held guilty of charge of
conspiracy - Held, A-128 had participated in landing and transportation of arms, ammunition
and explosives - Further, A-128 had agreed to undergo weapons' training in Pakistan for
95

committing terrorist acts and also attended meeting at Dubai alongwith co-conspirators to plan
commission of terrorist acts - Thus, A-128 was found guilty of conspiracy only to extent of
commission of terrorist acts punishable under Section 3(3) of TADA, and not of larger
conspiracy as he could not go to Pakistan for training for handling of arms and ammunition -
Moreover, A-128 had been acquitted of charge of larger conspiracy for reason that A-128 did
not participate in any act after his return from Dubai - Hence, Court did not find reason to
interfere with judgment of Designated Court - Appeal dismissed.Criminal Appeal No. 414 of
2011Criminal - Acquittal - Special Judge acquitted A-79 of charge of conspiracy - Hence, this
Appeal by state - Whether, A-79 could be held guilty of charge of conspiracy - Held, Special
Judge held that case of A-79 was entirely different from other co-accused, particularly those who
had not participated in training of arms - Further, A-79 had knowledge of said contraband
material being arms and ammunition and had been brought for terrorist activities and A-79 was
found in possession of handgrenades and empties and had thrown same in creek water to absolve
himself of offences - Thus, Special Judge was not justified in acquitting A-79 from first charge
of larger conspiracy merely on ground that A-79 did not know about places where bombs had to
be thrown and he was not resident of Bombay and did not participate in conspiratorial meetings -
Hence, there was sufficient material on record that A-79 participated in training of handling
handgrenades - Appeal allowed.Criminal Appeal No. 396 of 2011Criminal - Acquittal - Section
3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge
acquitted A-106 and A-111 of charge of conspiracy - Hence, this Appeal by state - Whether, A-
106 and A-111 could be held guilty of charge of conspiracy - Held, A-106 and A-111 did not
participate in training at Sandheri, and at most, they could be held to be silent spectators of
training and therefore, could not be involved in offence - Further, none of them had made any
confession and evidence against them regarding training at Sandheri was only by PW-106 -
Moreover, PW-106 deposed in court that some people was being trained in handling of arms at
Chinchecha Mal in morning and as there was continuous firing he went to said hillock in order
to find out what was happening - Further, PW-106 was frightened and immediately returned to
his village and he did not know person who had threatened him or other persons who were
having arms - Furthermore, about 4 to 5 persons from his village were amongst persons who was
sitting at said place at that time including A-106 and A-111 and PW-106 identified both A-106
96

and A-111 in court as persons sitting at Chinchecha Mal - Thus, Special Judge after appreciating
evidence came to conclusion that there was sufficient evidence to convict A-106 and A-111
under Section 3(3) of TADA - Hence, merely sitting at hillock, did not mean that they
participated in training and therefore, it could not be basis of assuming that they were party to
training programme - Appeal dismissed.Criminal Appeal No. 403 of 2011Criminal - Acquittal -
Special Judge acquitted Respondents under TADA for charge of Conspiracy - Hence, this
Appeal by State - Whether, Respondents was liable for charge of conspiracy - Held, Special
Judge held that Respondents-constables would have been negligent in performance of their
duties, they could not be held to be parties to conspiracy - Further, there was nothing on record
to show their involvement in conspiracy, or of them had committed any overt acts in execution
of such conspiracy - Moreover, as their acts did not transcend beyond their presence and their
negligence in interception and checking of vehicles, they was entitled to benefit of doubt as far
as conspiracy was concerned - Furthermore, all constables was of inferior ranks, and was acting
under instructions of officers who had been present at spot - However, without consent of A-116
who was head of police party goods could not have been permitted to be transported any further
- Thus, in his presence, Respondents-constables could not be held as responsible for taking
decision to permit further transportation of said goods - Hence, Respondents was not liable for
charge of conspiracy - Appeal dismissed.Criminal - Conviction - Section 3(3) and Section 6 of
Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted A-
73 under Section 3(3) and Section of TADA - Hence, this Appeal - Whether, order of conviction
passed by Special Judge against A-73 was justified - Held, after considering material evidence
on record Special Judge held that A-73 had in fact been involved in landing operations of
contraband substances - Further, evidence against A-73 includes his own confession wherein he
had confessed to being fully aware of fact that contraband was shifted from trucks to other
vehicles, which contained arms, ammunition and RDX - Thus, his act of driving vehicle
containing such material could not be for any purpose other than to aid and abet terrorist
activities - However, like other Appellants, his involvement and participation in landing
operations of contraband substances had been clearly established - Thus, A-73 has aided and
abetted terrorist activities - Hence, order of conviction passed by Special Judge against A-73 was
justified - Appeal dismissed.Criminal Appeal No. 512 of 2008Criminal - Conviction - Section
97

3(3) and Section 6 of Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) -
Special Judge convicted A-74 under Section 3(3) and 6 of TADA and had been acquitted on first
charge of conspiracy - Hence, this Appeal - Whether, Special Judge rightly convicted A-74
under Section 3(3) and of TADA - Held, on basis of disclosure statement made by A-74, 12 AK-
56 rifles and 36 magazines and cartridges was recovered from mango groves - Further, A-74 was
having knowledge about same due to being involved in shifting said contraband from house of
A-133 and AA to said mango groves along with A-133 and other co-accused - Moreover, it was
held that said acts and further acts of A-74 of giving assistance in dumping cartridges of AK-56
rifles and magazines, would made him guilty for commission of offences under Sections 3(3)
and of TADA - Thus, Special Judge rightly convicted A-74 under Section 3(3) and of TADA -
Appeal dismissed.Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities
(Prevention) Act, 1987(TADA) - Section 135(b) and Section 111 of Customs Act, 1962 -
Special Judge convicted A-81under Section 3(3) of TADA and further convicted under Section
111 read with Section 135(b) of 1962 Act - Hence, this Appeal - Whether, - Held, Special Judge
held that involvement of A-81 in landing at Dighi Jetty was established, but there was hardly any
evidence to reveal that A-81 had knowledge of contraband goods being arms and ammunitions -
Therefore, A-81 could not be held liable for offence under Section 3(3) TADA on said count i.e.
first limb of second charge, but guilty for offence punishable under Section 111 read with
Section 135(b) of 1962 Act for same - However, it was held that A-81 after having acquired
knowledge about nature of said contraband being arms and ammunition and still having
committed acts mentioned in second and third limbs of second charge i.e. concealment of
weapons in mango groves and dumping of cartridges and magazines, he would be guilty for
commission of offence under Section 3(3) TADA for said offences - Thus, Special Judge had
taken into consideration other confessional statements of other accused to support prosecution
case - Hence, A-81 was rightly convicted under Section 3(3) of TADA and under Section 111
read with Section 135(b) of 1962 Act - Appeal dismissed. Criminal - Conviction - Section 3(3)
of Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Special Judge convicted
A-104 under Section 3(3) of TADA and acquitted of first charge of criminal conspiracy - Hence,
this Appeal - Whether, - Held, Special Judge held that A-104 having knowledge of said articles
being kept at said place revealed his authorship of keeping them at said place - Further, same not
98

being rebutted by A-104 would lead to conclusion of him being in possession of contraband
material and liable for commission of offence under Section 3(3) of TADA i.e. second limb of
second charge - Moreover, it was held that there was no sufficient evidence to establish offence
under Section of TADA and thus it could not be held liable for same - Furthermore, there was no
evidence to establish that A-104 transported AK-56 rifles in motor jeep from Mhasla to Bombay
i.e. first limb of second charge, he could not be held guilty for same - Hence, Special rightly held
A-104 guilty for offences under Section 3(3) of TADA - Appeal dismissed. Criminal Appeal No.
1630 of 2007Criminal - Conviction - Section 3(3) of Terrorist and Disruptive Activities
(Prevention) Act, 1987(TADA) - Section read with Section of Explosive Substances Act,1908 -
Special Judge convicted Appellant under Section 3(3) of TADA and further convicted under
Section read with Section of 1908 Act - Hence, this Appeal - Whether, Appellant was rightly
convicted by Special Judge - Held, initially A-85 himself was not aware regarding material
which was stored in said godown - However, after being shown relevant material A-85 had
become aware of nature of contraband material but still he did not take any steps regarding same
i.e. informing to police, etc. - Thus, A-85 acts would definitely amount of having committed
offence under Section 3(3) of TADA having regard to wide definition of abetment given under
TADA - Further, A-85 confession revealed that material kept in his godown was ultimately
taken away by Tiger Memon later on also denotes that though material was in godown of A-85
or his father still all time possession of same had remained with Tiger Memon - Thus, A-85
could not be held guilty for commission of offence under Section and 6 TADA for which he was
charged with - Moreover, A-85 still having allowed to continue said material in his godown till
same was taken away by AA, would make him liable for commission of offence under Section
read with Section of 1908 Act - Hence, Court did not find reason to interfere with judgment of
Designated Court - Appeal dismissed. Criminal Appeal No. 1439 of 2007Criminal - Charge of
Conspiracy - Section 3(3) and Section 6 of Terrorist and Disruptive Activities (Prevention) Act,
1987(TADA) - Section and Section read with Section 25(1-A)(1-B)(a) of Arms Act - Special
Judge convicted Appellant under Section 3(3) and 6 of TADA and further convicted under
Sections and read with Section 25(1-A)(1-B)(a) of Arms Act - Hence, this Appeal - Whether,
Appellant could be held guilty of charge of conspiracy - Held, A-42 was involved in Shekhadi
landing operations and A-14 had chosen Appellant for purpose of keeping 2 revolvers with him
99

and fact that A-42 had readily kept same, revealed that Appellant was a man in which prime
accused had confidence with respect to conspiracy - Since, Apellant had committed relevant acts
much prior to date of bomb blasts and had not participated in any meetings, nor was he
connected with same in any manner, he could not be held guilty for offence of larger conspiracy
i.e. first charge - Hence, Court did not find reason to interfere with judgment of Designated
Court - Appeal dismissed. .Criminal Appeal No. 1035 of 2012Criminal - Acquittal - Special
Judge acquitted Respondents under TADA for charge of Conspiracy - Hence, this Appeal by
State - Whether, Respondents was liable for charge of conspiracy - Held, as Respondent had
been awarded sufficient punishment under different heads of Section 3(3) and of TADA, and
said offences themselves was a part of conspiracy - Further, Special Judge had divided
conspiracy into various components, where accused was either involved in participating in
various conspiratorial meetings, receiving training in handling of arms, their active participation
in throwing of bombs or parking of vehicles fitted with explosives, or where accused persons
participated only in landing and transportation of contraband, but were not aware of contents of
said contraband - Moreover, another category where accused had knowledge of contents of
contraband, but did not participate either in conspiratorial meetings held, or in any actual
incident of any terrorist activity, and had awarded different punishments accordingly - Hence,
Court did not find reason to interfere with judgment of Designated Court - Appeal
dismissed. .Criminal Appeal No. 203 of 2008.Criminal - Conviction - Section 3(3) and 6 of
Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA) - Section and Section read
with Sections 25(1-A) (1-B)(a) of Arms Act - Section 201of Indian Penal code 1860 - Special
Judge convicted A-79 under Section 3(3) and 6 of TADA and further convicted under Section 3
and 7of Arms Act but no separate sentence had been awarded and also convicted under Section
201 of IPC - Hence, this Appeal - Whether, Appellant was guilty for offenses charged with -
Held, there exists no other evidence of commission of any act by Appellant A-79 and there was
no evidence of him having been to Bombay or having participated in conspiratorial meetings, it
would be difficult to accept that knowledge of commission of serial bombs blasts in Bombay
could be attributed to him - Since, there was paucity of evidence to show that A-79 had any
knowledge regarding places at which explosions were committed in Bombay, he could not be
held liable for offence of larger conspiracy for which charge at head firstly was framed against
100

him - However, considering acts and offences committed by A-79 and particularly retaining of
such a contraband material and disposing same definitely establishes himself being a party to
conspiracy to commit terrorist act punishable under Section 3(3) of TADA - Thus, it was also
evident that PW-105 named three persons from his village participating in arms training at
Sandheri hillocks and one of them had been A-79 - Hence, Appellant was guilty for offenses
charged with - Appeal dismissed. .Criminal - Conviction - Section 3(3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987(TADA) - Section 201 0f Indian penal Code, 1860 -
Special Judge acquitted A-62 and convicted for offences charged under Section 3(3) of TADA
and also under Section 202 of IPC - Hence, this Appeal - Whether, A-62 had rightly been
convicted by Special Judge under Section 3(3) TADA and Section 202 of IPC - Held,
confessional statement of A-62, revealed that being a watchman of government premises i.e.
Wangni Tower he had allowed same to be used for purpose of facilitating smuggling and landing
of arms, ammunition, handgrenades and explosives as organized by AA and his associates -
Further, from evidence it established that his involvement in concealing 59 bags of RDX
explosives in a field was existing in his name - Thus, being a government servant, A-62 had
intentionally omitted giving information to authorities about offences committed in his presence,
which he was legally bound to do - Hence, A-62 had rightly been convicted by Special Judge
under Section 3(3) TADA and Section 202 of IPC - Appeal dismissed. .Criminal - Conviction -
Special Judge convicted A-62 under Section 3(3) of TADA and Section 202 of IPC - Hence, this
Appeal - Whether, A-62 could be held guilty for charge of larger conspiracy - Held, confession
of A-62 and co-accused leads to conclusion of A-62 also being involved in Shekadi landing
operation as denoted by said material and as such had committed offence under Section 3(3) of
TADA - Further, same evidence also established his involvement in commission of offence
under Section 202 of IPC on count of himself in spite of being watchman and Government
servant had still knowingly and intentionally omitted to give information about offences
committed in his presence being in possession of contraband material unauthorisedly - Hence, it
could be said that Respondent could be held guilty for charge of larger conspiracy - Appeal
dismissed.Ratio-Decidendi.Prosecution shall prove its case beyond reasonable doubt.
101

.  Mohan Singh vs . State of Bihar ( 26 . 08 . 2011 - SC )

Case Note: Code of Criminal Procedure, 1973 - Section 211 (2)--Indian Penal Code, 1860--
Sections 120B and 387--Conspiracy for murder--And extortion of money--One person killed and
his father seriously injured by gunshots--Conviction and sentence--Non-framing of charge under
Section 302--But no prejudice or failure of justice caused thereby--In charge clearly mentioned
that appellant committed murder of deceased--All ingredients of charge mentioned--
Requirement of Section 211 (2), Cr. P.C. complied with--Identification of accused-appellant--
Well established from evidence on record--No reason to take different view--No ground to
interfere.No prejudice has been caused to the appellant for non-mentioning of Section 302,
I.P.C. in the charge since all the ingredients of the offence were disclosed. The appellant had full
notice and had ample opportunity to defend himself against the same and at no earlier stage of
the proceedings, the appellant had raised any grievance. Apart from that, on overall
consideration of the facts and circumstances of this case, it is not found that the appellant
suffered any prejudice nor has there been any failure of justice.In the instant case, in the charge
it has been clearly mentioned that the accused-appellant has committed the murder of Anil Jha.
By mentioning that the accused has committed the murder of Anil Jha, all the ingredients of the
charge have been mentioned and the requirement of Section 211, sub-section(2) has been
complied with.P.W. 4 in his evidence clearly stated that the appellant gave him a phone call
asking for money on 23.7.2005 and again on 25.7.2005 when the appellant threatened him of
dire consequences for not paying the money. P.W. 4 also stated in his evidence that he got an
102

I.D. caller installed in his phone and he informed the police of the phone number of the caller
which is of the appellant. P.W. 4 also stated In his evidence that he had direct talks with the
appellant at hospital chawk prior to the incident when he used to demand money from him and
other shopkeepers at the time of Durga Puja and Saraswati Puja. P.W. 4 specifically stated that
he can identify the voice of Mohan Singh. The first Investigating Officer of the case (P.W. 6) in
his evidence also stated that during investigation mobile No. 9835273765 of Mohan Singh was
found and mobile No. 9431428630 of Laxmi Singh was also found. P.W. 8. the other
Investigating Officer of the case stated that on 23.7.2005. four calls were made between the
mobile phones of Laxmi Singh and Mohan Singh. Then six more calls were made by Laxmi
Singh to Mohan Singh on 3.8.2005. i.e., on the day of the incident itself. The printout details of
these phone calls were produced before the Court. So both the trial court and High Court
considered the evidence of P.W. 6 and P.W. 8 who were the Investigating Officers in this case,
apart from the evidence of P.W. 4, other witnesses and the materials on record before coming to
the conclusion. The fact that the name of registered allottees the SIM cards of these mobile
phones could not be traced is not relevant in this connection.

78.  Essa @ Anjum Abdul Razak Memon ( A - 3 ) and Ors . etc . etc . vs .
The State of Maharashtra , through STF , CBI Mumbai and Ors .
etc . etc . ( 21 . 03 . 2013 - SC )
103

Case Note: Criminal - Conviction - Challenge thereto - Designated Court under TADA for
Bombay Bomb Blast Case convicted and sentenced Appellants under Section 3(3) of TADA (P)
Act, 1987 and Section 120-B of Indian Penal Code, 1860(IPC) read with Sections 3(2)(i)(ii) ,
3(3),(4), (5) and 6 of TADA (P) Act, 1987 and read with Sections 302 307, 326, 324, 427, 435 ,
436, 201 and 212 of IPC and offences under Sections 3 and 7 read with Sections 25(1A), (1B)(a)
of Arms Act, 1959, Sections 9B(1)(a)(b)(c) of Explosives Act, 1884, Sections 3 and 4(a)(b) of
Explosive Substances Act, 1908 and Section 4 of Prevention of Damage to Public Property Act,
1984 - Hence, this Appeal - Whether Appellants A-3, A-4, and A-8 were righlty convicted
Under Section 3(3) of TADA and Section 120-B of IPC and Section 3 (3) of TADA -
Held,evidence on record established that A-8 was aware that vehicle owned by her (i.e. MFC
1972) was being used for terrorist acts by Tiger Memon and his associates - It was further
established that Flat Nos. 22, 25 and 26 at Al-Hussaini building where members of Memons'
family resided jointly were nucleus of criminal conspiracy as they were locations where Tiger
Memon and Yakub Memon met with several other Co-Accused persons during period of
conspiracy - Further, arms and explosives smuggled into India for purpose of conspiracy were
also kept at said building and lastly RDX was filled in vehicles in and outside garages allocated
to Memons' at Al-Hussaini building which were used/planted as bombs at various places by all
conspirators - Further, it was pertinent to note that evidence on record revealed that Maruti car
used by A-3 was driven by several Co-Accused persons including A-15, A-46 and A-11 to
landing point for landing of weapons and loaded with RDX which exploded killing 4 persons
and injuring 38 others - Hence, evidence established that white car driven by A-3 was used for
terrorist activities by Tiger Memon and other Co-Accused persons - Further, A-3, A-4, and A-8
resided jointly at these flats where Tiger Memon, Yakub Memon (A-1) and their associates
hatched criminal conspiracy to carry out multiple explosions in Bombay - Conduct of Appellants
in not reporting any of these activities to police and fact that A-3 and A-4 departed from India in
itself was an incriminating circumstance to be used against Appellants - Moreover, evidence on
record established that Appellants facilitated commission of terrorist acts as defined in Section
3(1) of TADA by conniving with Tiger Memon and his associates and permitting them to use
their flats and vehicles for purposes of criminal conspiracy - Thus actions of Appellants squarely
fell within Section 3(3) of TADA insofar as Appellants have facilitated and abetted conduct of
104

terrorist acts by Tiger Memon and his associates - Therefore, materials placed on record by
prosecution and ultimate analysis of Designated Court, conviction and sentence imposed upon
Appellants were proper - Appeal dismissed.Criminal - Conviction - Whether Appellant (A-116)
convicted for offence of conspiracy under Section 3(3) of TADA - Held, evidence clearly
revealed that Appellant was primarily responsible for decision arrived at in allowing said
contraband smuggled material to be transported further without same being intercepted/checked
by police in lieu of bribe amount to be received - Thus, evidence substantiated and established
charge of conspiracy framed against Appellant (A-116) - Therefore, reasoning and ultimate
conclusion of Designated Court both on conviction and sentence was proper - Appeal
dismissed.Criminal - Conviction - Appellant (A-136) had been convicted and by Designated
Court under TADA for Bombay Bomb Blast Case - Further, State filed appeal for conviction
and charged under Section 3(3) of TADA and Section 120-B of IPC - Whether A-136 had been
rightly convicted and sentence by Designated Court - Held, Designated Court held that A-136
acquired knowledge of arms and ammunitions at Dighi Jetty when goods were being unloaded
and had not played any further role except transportation of same from Dighi Jetty to Gondghar
Phata where they were intercepted by police party - After careful examination of all materials
placed, it was held that in absence of any positive evidence, A-136 could not be convicted and
charged under Section 3(3) of TADA and Section 120-B of IPC, i.e., conspiracy and Designated
Court had rightly acquitted him from said charge - Further, taking note of all materials and
proved charges mentioned at other heads, this Court was satisfied that sentence awarded by
Designated Court could not be said to be excessive - On other hand, sentence awarded by
Designated Court to Appellant was justifiable and acceptable - Appeal dismissed.Criminal -
Conviction - Sentence - Appellant (A-64) had been convicted and sentenced by Designated
Court under TADA for Bombay Bomb Blast Case - Whether such order of conviction and
sentence passed by lower Authority was justified - Held, prosecution submitted that Appellant
was given full opportunity to defend himself on question of quantum of sentence - Appellant's
statement was recorded in which he prayed that certain factors, amongst others, may be
considered while determining his sentence - Designated Court duly considered all these factors
while awarding sentence - Further, Appellant was a coveted member of conspiracy and was
indulged in acts furthering object of conspiracy - Thus, this Court was satisfied that Appellant
105

was involved in conspiracy from planning to execution - Hence, conviction under Section 3(3)
of TADA and sentence awarded by Designated Court was confirmed - Appeal
dismissed.Criminal - Conviction - Sentence - Challenge thereto - Appellant (A-64) has been
convicted for offence of conspiracy read with offences under Section 3(3) of TADA and
sentenced - Whether charge and sentence awarded by Designated Court to Appellant was
justified - Held, all factors had been duly considered by Designated Court and contentions were
devoid of any merit having regard to fact that Appellant had sufficient potential for commission
of terrorist acts owing to have acquired training in handling sophisticated arms and ammunitions
at Pakistan - Further, Appellant's contention that he was forced to participate in second landing
since Tiger Memon, Javed Chikna and others had threatened to kill his family members was not
tenable as despite being threatened at time of first landing and after getting knowledge that said
landing was of arms and ammunitions and explosives, he chose to remain silent instead of
approaching police or taking recourse to law - Despite all this, Appellant participated in second
landing at Shekhadi and moreover, he went to Pakistan at instance of same persons who had
threatened him - Further, it was also relevant to note that after realizing that explosions took
place at various places in Bombay, Appellant absconded and remained away from clutches of
law until he was arrested by police - Appellant stayed at various places in assumed names in
order to conceal his identity to avoid his arrest - Thus, Appellant fleeing away after explosions
took place only goes to show his association and involvement in conspiracy to cause blasts and
undoubtedly he was a part of it - It also pointed out Appellant's guilt in commission of said acts
in furtherance of conspiracy - Therefore, Appellant was actively involved in conspiracy to cause
blasts in Bombay and in consequence of said involvement, he has committed said offences for
which he has been charged and sentence awarded by Designated Court to Appellant was
justified - Appeals dismissed.Criminal - Conviction - Whether Appellant (A-52) has been rightly
convicted for offence of conspiracy under Section 3(3) and Section 5 of TADA and under
Section 120-B Criminal - Conviction - Challenge thereto - Whether, Appellant (A-49) has been
rightly convicted for offence of conspiracy under Section 3(3) and Section 3(2)(ii) of TADA and
Section 120-B , Section 307 read with Section 34 , Section 435 read with Sections 511 of IPC,
Section 4 of Prevention of Damage to Public Property Act, 1984 read with Sections 511 and 34
of IPC and Sections 3 and 4 and of Explosive Substances Act, 1908 - Held, perusal of
106

confessional statements of all above Accused clearly established fact that it corroborated with
each other and also with confessional statement of Appellant (A-49) - After consideration of all
confessional statements of Co-Accused, involvement of Appellant in conspiracy was clearly
established - Moreover, PW-7 revealed that two persons identified by him in TIP were dissimilar
in their appearance and that Criminal Manual requires that in an identification parade, Accused
should be placed with his dummies similar to his appearance - Thus, in view of this, it was
proved that prosecution had adduced sufficient evidence regarding dummies selected being of
similar appearance with suspects put in parade - Hence, it was established that Appellant had
thrown hand grenade towards aircraft thereby causing explosion and consequent damage -
Appellant was given full opportunity to defend himself on question of quantum of sentence -
However, Appellant was a coveted member of conspiracy and was indulged in acts furthering
object of conspiracy - It was proved beyond doubt that Appellant was in conspiracy until final
date of achievement of object of conspiracy - There was no valid ground for interference in
conviction and sentence - Appeal dismissed. Criminal - Conviction - Appellant (A-13) had been
convicted for offence of conspiracy read with Section 3(3) of TADA, Section 148 of Indian
Penal Code, Section 302, Section 307, Section 324 and Section 436 read with Section 149 of
Indian Penal Code and sentenced - Whether charges and sentence awarded by Designated Court
to Appellant was justified - Held, apart from facts, on perusal of A-13's entire confession this
Court was satisfied that Appellant had made confession voluntarily without any pressure or
coercion and same had been recorded after following all safeguards enumerated under Section
15 of TADA and Rules framed thereunder - Further, recording officer had proved that
confession was given voluntarily and without any force, coercion or allurement - Thus,
Designated Court duly considered all factors while awarding sentence - Further, Appellant was a
coveted member of conspiracy and was indulged in acts furthering object of conspiracy - Thus,
this Court was satisfied that Appellant was involved in conspiracy from planning to execution -
Therefore, conviction and sentence awarded by Designated Court was confirmed - Appeal
dismissed.Criminal - Conviction - Sentence - Appellant (A-14) had been convicted for charge of
conspiracy and under Section 3(3) and Section of TADA and Section 120B of Indian Penal
Code and sentenced by the Designated Court under TADA for Bombay Bomb Blast Case -
Whether charges and sentence awarded by Designated Court to Appellant was justified - Held, a
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perusal of entire evidence on record showed that no other hypothesis was possible than to
conclude that A-14 willingly participated and assisted Dawood Ibrahim and Tiger Memon in
smuggling of large quantity of weapons, ammunitions and explosives of mass destruction which
ultimately resulted in huge destruction shocking to very conscience - If role of Appellant was
seen in light of his agreement, understanding and his consciousness of ultimate use of smuggled
arms and ammunitions and explosives, culpability of Appellant was no less than Tiger Memon -
All other Co-Accused persons in their confessional statements asserted that Appellant acted not
only as a landing agent but he was also aware of arms and ammunitions and was himself in
possession of same - Further, it had also come in evidence that he was aware of all activities of
Tiger Memon - Even if Appellant's age was considered, he had not made out a case for any
leniency in sentence part - Therefore, Appellant was actively involved in conspiracy to cause
blasts in Bombay and in consequence of said involvement he had committed offences for which
he had been charged - Hence, this Court was not inclined to interfere with conviction and
sentence awarded by Designated Court - Appeals dismissed.Criminal - Conviction - Appellant
(A-43) had been convicted for charge of conspiracy and under Section 3(3), Section 5 , Section 6
and Section 3(2)(i)(ii) of TADA, Section 302 , Section 307, Section 324 , Section 436 read with
Section 149 Indian Penal Code, Section 148 Indian Penal Code, Sections 3 and 7 read with 25(1-
A) and 25(1-B) (a) of Arms Act, 1959, Section 120-B of Indian Penal Code and sentenced by
Designated Court under TADA for Bombay Bomb Blast Case - Whether charges and sentence
awarded by Designated Court to Appellant was justified - Held, all materials placed showed that
Appellant had knowingly and willingly participated at various stages of conspiracy - Appellant
took training in handling of arms and ammunitions and explosives at Sandheri, attended
conspiratorial meetings, kept hand grenades in his possession, actively participated in
preparation of vehicle bombs which were later planted at various locations resulting in death of
hundreds of people and injuries to many others and went to Fishermen's Colony at Mahim and
threw hand grenades - Despite being fully aware of conspiracy, Appellant proceeded to act by
taking training, preparation of vehicle bombs and even throwing hand grenades in a populated
place, thereby, furthering object of such a heinous conspiracy - Therefore, this Court confirmed
conviction and sentence awarded by Designated Court - Appeals dismissed.Criminal -
Conviction - Sentence - Whether Appellant (A-57) has been rightly convicted under Section 3(3)
108

, Section 5 and 6 of TADA and Section 120B of Indian Penal Code - Held, evidence established
that Appellant (A-57) was a member of conspiracy which resulted in blasts and acts which took
place in Bombay - He played an active role in conspiracy - It was thus established that Appellant
played a significant role in conspiracy and knew about intention of conspirators well before
incidents took place - Appellant shared motive and intention along with other conspirators and
was committed to achieve ultimate goal of conspiracy - Appellant attended crucial conspiratorial
meetings also - He also participated in filling of RDX in vehicles for preparation of vehicle
bombs - He also introduced Gul Mohmed (A-77) in conspiracy and got him recruited for
training in handling of arms and ammunitions and explosives at Pakistan - Appellant also
undertook reconnaissance of B.M.C. building and Stock Exchange building along with A-44,
PW-2, Javed Chikna and Tiger Memon, which were marked as targets for planting bombs -
Appellant's guilt was further established by fact revealed in his confession that after blasts, he
left Bombay and went to Ahmednagar - This established that he knew that whatever conspirators
had done was wrong and contrary to law - Thus his claim that he disassociated himself at time of
first landing at Shekhadi had not been made out in light of other evidence on record - Appellant
participated in acts mentioned above willingly and with complete knowledge - He knew that
arms and ammunitions, RDX and hand grenades which were smuggled into India at Shekhadi
would be used for committing terrorist acts - It was clearly established from his confession that
Tiger Memon had told his associates that smuggled arms were to be used against Hindus to take
revenge for demolition of Babri Masjid and that they would be used for causing blasts in
Bombay - Hence, conviction and sentence awarded by Designated Court to Appellant was
justified - Appeal dismissed.Criminal - Conviction - Challenge thereto - Whether Appellant (A-
98) has been rightly convicted for the offence under Section 3(3) of TADA - Held, It has been
established by very own confession of Appellant that he had gone to Pakistan from Dubai where
he underwent weapons training - Aforesaid confession had been corroborated by confession of
Co-Accused and hence there was no doubt whatsoever that Appellant went to Pakistan from
Dubai and acquired training in arms and ammunitions and explosives in order to take revenge
against Hindus - Moreove, evidence clearly established that Appellant along with other co-
conspirators was given said training to equip themselves to commit terrorist acts in Bombay and
therefore he had rightly been convicted under Section 3(3) of TADA - Hence, Appellant was
109

actively involved in conspiracy to cause blasts in Bombay and in consequence of said

involvement, he had committed offences for which he has been charged - There was no need to
show any leniency in respect of act involved and as proved by prosecution, following facts were
relevant for awarding appropriate sentence - Appeal dismissed.Criminal - Conviction - Sentence
- Whether Appellant (A-100) has been rightly convicted for offence of under Section 3(3) of
TADA for commission of offences - Held, perusal of confessional statements of all Accused
clearly establisheed fact that it corroborated with confessional statement of Appellant (A-100) -
After consideration of all confessional statements of Co-accused, involvement of Appellant in
conspiracy was established - With respect to training at Pakistan, confessional statements of Co-
Accused persons against Appellant including his own confession were duly corroborated with
aforesaid depositions of officers on Immigration duty who testified about departure of Appellant
to Dubai and his arrival at Bombay - To undergo weapons training as a part of conspiracy and to
further conspiracy to cause terrorist acts in India constitutes an offence - Therefore, he was
rightfully convicted for same - Appeal dismissed.Ratio DecidendiNo accused shall be convicted
without giving an opportunity of being heard.

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112

Case Note: Criminal - Delay in filing of FIR - Effect thereof - Sections 342, 346, 302, 120B 34
and 201 of Indian Penal Code, 1860 (IPC) - Appeal was filed against order of High Court
sustaining conviction recorded by trial Court against Appellant Accused 1 for offences
punishable under Sections 342, 346, 302, 120B and 201 read with Section 34 of IPC - Whether
delay in lodging of FIR and absence of explanation thereof, was fatal to prosecution case - Held,
case did not reveal that absence of spontaneity in lodgment of FIR had created a coloured
version - In view of other circumstances which lend support to prosecution story, it was difficult
to disbelieve and discard prosecution case solely on ground that FIR was lodged on 25th
January, 2006 though deceased was taken by Accused persons some time on 23rd January, 2006
- Explanation offered pertaining to search of deceased by informant had been given credence to
by trial Judge as well as by High Court and, adjudging entire scenario of prosecution case, same
deserved acceptation - Hence,delay in lodging of FIR was not fatal to prosecution case Criminal
- Admissibility of evidence - Whether recovery or discovery of seized articles could be utilized
against Appellant - Held, confession part was inadmissible in evidence - Panch witnesses turned
hostile - Factum of information related to discovery of dead body and other articles and said
information was within special knowledge of Appellant - Hence, doctrine of confirmation by
subsequent events was attracted - Therefore, recovery or discovery in present case was a relevant
fact or material which could be relied upon and had been correctly relied upon Criminal -
Legality of conviction - Circumstantial evidence - Whether last seen theory should be totally
discarded - Held, time when deceased was seen in company of Appellant Accused 1 and time of
death was not long and said fact had been duly established by medical evidence and there was no
reason to discredit same - Thus, circumstance pertaining to theory of last seen deserved
acceptance - Other evidence on record were cogent, credible and met test of circumstantial
evidence laid down in cases of SharadBirdhichandSardav. State of Mararashtra,State v.
Saravanan, Sunil Kumar Sambhudayal Gupta v. State of Maharashtraand further reiterated in
case of Jagroop Singh v. State of Punjab - Hence, there was no justification to come to hold that
prosecution had deliberately withheld a witness that created a concavity in concept of fair trial -
Appellant failed to offer appropriate explanation towards incriminating circumstances except
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making a bald denial - Same could be counted as providing a missing link for building chain of
circumstances - Circumstances led towards Appellant's guilt - Conviction under Section 302 of
IPC, was sustained - High Court erred in not recording an order of acquittal under Section 120B
of Act, as no other Accused had been found guilty - Conviction under Section 120B of IPC, was
not sustainable when other Accused persons had been acquitted, because an offence of
conspiracy could not survive if there was acquittal of other alleged co-conspirators - Conviction
under Section 120B of IPC, was set aside - Other convictions would stand - Appeal dismissed

  ABUTHAGIR AND ORS . VS . STATE REP . BY INSPECTOR OF

POLICE , MADURAI ( 08 . 05 . 2009 - SC )

Case Note: Criminal - Conviction - Challenge was to the judgment upholding the conviction of
the Appellants for offence punishable under Section 302 read with Section 34, Section 120B and
Section 148 of the Indian Penal Code, 1860 Held, Prosecution version has to be judged as a
whole having regard to the totality of the evidence - In appreciating the evidence the approach of
the Court must be integrated and not truncated or isolated - To draw conclusion about the guilt
of the accused, evidence to be assessed and analyzed by the yardstick of probabilities, its
intrinsic value and the animus of the witnesses - in the case of conspiracy there cannot be any
direct evidence. The ingredients of the offence are that there should be an agreement between
114

persons who are alleged to conspire and the said agreement should be for doing an illegal act or
for doing by illegal means an act which itself may not be illegal. Therefore, the essence of
criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved
either by direct evidence or by circumstantial evidence or by both, and it is a matter of common
experience that direct evidence to prove conspiracy is rarely available. Therefore, the
circumstances proved before, during and after the occurrence have to be considered to decide
about the complicity of the accused. Appeal dismissed [para 16]

  JOHN PANDIAN VS . STATE REP . BY INSPECTOR OF

POLICE , T . NADU ( 03 . 12 . 2010 - SC )

Case Note: Criminal - Conviction - Challenge against thereto Sections 120B, 302 read with
Section 109, Indian Penal Code (IPC), 1860 - Trial Court convicted accused No.9, 10 11 for
offences under Section 302 read with Section 34 of IPC while accused no. 9 for substantive
offence and other 2 aid under Section 34 of IPC while acquitting accused No.3 and convicted
115

other accused under Section 120 B - High Court in appeal acquitted the original accused No.8
and dismissed the appeal of others - Hence this appeal - Whether the conviction of the accused
persons is justified Held, Conviction of A-9, A-10 depends upon the evidence of eye-witnesses
along with the other circumstantial evidence - Eye- witnesses identified the accused in the
Identification parade - Evidence of these three eye-witnesses suffer from any infirmity.
Prosecution proved beyond doubt the engaging of Taxi and presence of accused in Ooty on the
said day - Discovery of aruval effected at the instance of A-9 proved by the evidence PW-41 and
PW-56 - Circumstance accepted by courts below correct and no reason to take a different view -
There is sufficient evidence against A-9 and A-10 and the Trial and the appellate Courts have
correctly convicted them for the offence under Section 302 in case of A-9 and others with the aid
of Section 34 IPC. Criminal - Evidence - Confessional Statement - Whether same set of
witnesses have to be used for confessional statement and subsequent discovery pursuant thereto -
Held, no rule that same witness have to be used for confessional statement and subsequent
discovery pursuant to that statement - Undoubtedly, same set of witness make the discovery
more acceptable and credible Criminal - Conviction - Challenged against thereto - Accused No.
2,3,5,6 and 7 were convicted as being the conspirators under Section 120 B of Indian Penal Code
, 1860 - Held, strongest circumstance in support of the existence of a conspiracy appears to be
the fact that the three totally unknown persons went all the way from Palayamkottai/Tirunelveli
and without any rhyme or reason, to assault deceased - In order to prove criminal conspiracy,
there must be evidence direct or circumstances to show that there was an agreement between two
or more persons to commit an offence - There must be a meeting of minds resulting in ultimate
decision taken by the conspirators regarding the commission of the offence and where the
factum of conspiracy is sought to be inferred even from circumstances giving rise to a
conclusive or irresistible inference of an agreement between two or more persons to commit an
offence - evidence of conspiracy is very hard to be found and the prosecution would always have
a great difficulty in proving the conspiracy and, therefore, the conspiracy has to be inferred -
But, fact that A2, A4, A5 and A6 travelled from Coimbatore to Madurai and from Chennai to
Coimbatore does not connect A 7 - No effort has been made to identify A-7 - Some evidence to
suggest that he had some nexus with A-9, A-10 and A-11 but its far from being satisfactory -
There is hardly any evidence against A5 apart from his travel - There is nothing to suggest that
116

he had any nexus with the so-called conspirators - A6 cannot be held as conspirator merely
because of some discoveries and these do not connect the accused - This evidence falls short to
hold him as conspirator - A4 too cannot be held as a conspirator on the evidence adduced by
prosecution - Prosecution has failed to establish the case against A2 - Hence, as per the
circumstances of the case A7, A6 ,A4 ,A5 and A2 granted benefit of doubt and hence acquitted

.  Murugesan S / o Muthu and Ors . vs . State through Inspector of

Police ( 12 . 10 . 2012 - SC )

Case Note: Criminal - Conviction - Section 120B,302, 148,332 r/w 149 of Indian Penal
Code,1860 (I.P.C.) - High Court reversed acquittal of Appellants/Accused/A-1 to A-19 and
convicted each one of Accused for an offence punishable under different provision of I.P.C. -
Hence, this Appeal - Whether, conviction of all Accused was justified - Held, reversal acquittal
could have been made by High Court only if conclusions recorded by trial Court did not reflect
possible view - However consideration on basis on which trial Court had founded its order of
acquittal clearly reflects possible view - Further grounds that had prevailed upon High Court to
hold that commission of offence of criminal conspiracy Under Section 120B of I.P.C. had been
proved by prosecution had already been noticed - Similarly reasons for our disagreement with
conclusion of High Court that defence evidence adduced in case did not satisfactorily establish
plea of alibi put forward by A-4 and A-12 had also been indicated - Therefore aspects of case
117

would not need any further dilation and it was reasons for conviction of Accused Appellants
Under Section 302 of I.P.C. and other provisions of I.P.C. would be required to be noticed -
High Court had concluded that evidence of PW-1, PW-2, PW-3 and PW-4 had supported
prosecution case to certain extent and said fact could not have been ignored only because PW-2,
PW-3 and PW-4 were declared hostile - Absence of any Test Identification Parade according to
High Court did not materially affect prosecution case as PW-5 and PW-7 had stated in their
evidence that Accused used to frequently came to police station in connection with other cases in
which they were involved - Thus it difficult to agree with view taken by High Court on aspects
of case - Hence conviction of Accused Appellants recorded by High Court under different
provisions of I.P.C. could not be sustained - Appeal allowed.Ratio Decidendi"Order of acquittal
shall not be reversed by Appellant Court unless there are substantial and compelling reasons,
good and sufficient grounds."

.  Raghunath Anant Govilkar vs . State of Maharashtra and Ors .

( 08 . 02 . 2008 - SC )
118

Case Note: Criminal - Corruption - Government servant - Sanction - Requirement of - Sections

420, 465, 466, 467, 468, 471 of the Indian Penal Code, 1860 - Rule 27 of Maharashtra civil
Services (Pension) Rules, 1982 - Sections 197 and 228 of Code of Criminal Procedure, 1973 -
Applicability of - Allegation against the Appellant was that while working with MHADA, the
Appellant allotted premises to various persons under his signature, issued rent receipts so that
the persons could claim that they were in possession of the tenements, though in fact, the
tenements were vacant and were not in possession of MHADA - Appellant was in Government
service and a complaint was filed while he was in service - Appellant filed an application for
discharge in terms of Section 228, before the Trial Court primarily on the ground that sanction
was necessary for his prosecution and that proceedings could not have been initiated after his
retirement - Application was dismissed by the Trial Court - On appeal, the High Court dismissed
the petition affirming the view taken by the Trial Court and held that sanction under Section 197
not necessary as Appellant had already retired from service - Hence, the present appeal -
Appellant submitted that the acts done had link with the official duty, hence, sanction under
Section 197 Cr.P.C. is necessary - Whether sanction in terms of Section 197 Cr.P.C. is necessary
in the present case - Held, the protection under Section 197 Cr.P.C. is available only when the
alleged act done by the public servant is reasonably connected with the discharge of his official
duty and is not merely a cloak for doing the objectionable act - There should always be a
reasonable connection between the act done and the official duty - Use of the expression official
duty implies that the act or omission must have been done by the public servant in the course of
his service and that it should have been in the public service and discharge of his duty - Section
does not extend its protective cover to every act or omission done by a public servant in service
but restricts its scope of operation to only those acts or omissions which are done by a public
servant in discharge of official duty - In the present case, it is no part of the official duty of the
public servant to enter into a criminal conspiracy for committing breach of trust - Hence, Section
197 has no application - View of the High Court in this regard erroneous - No question of
119

quashing of complaint for want of sanction - Appeal dismissed

.  Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid vs .

State of Maharashtra ( 29 . 08 . 2012 - SC )

......

Case Note: Criminal - Conviction - Sections 120B/302, 121, 121A, 122 and 302 /109 of Indian
penal Code, 1860 (IPC) - Section 16 of Unlawful Activities (Prevention) Act, 1967 - Explosives
Act, 1884, Explosive Substances Act, 1908, and Arms Act, 1959 - Trial Court convicted
Appellant for offence punishable under Sections 120B / 302 and Sections 121, 121A, 122 and
Section 302 / 109 of IPC and also under Section 16 of Act 1967 and also for offence punishable
under Acts, 1884,1908 and 1959 and other two Accused were acquitted of all charges -
However, High Court confirmed death sentences given to Appellant by trial Court and upheld
Judgment and order passed by trial Court in all material aspects it sustained Appellant's
conviction and confirmed punishments given him by trial Court, but at same time it did not
interfere with acquittal of other two Accused - Hence, this Appeal - Whether, conviction of
Appellant was right - Held, all witnesses had a life and death encounter with Appellant and his
associate Accused No. 1, at close quarters - Physical appearance of two terrorists was etched on
their minds - All witnesses gave a detailed description of two terrorists to Court - They described
them by their complexion, age, body-built and height, stating that one of them was tall and other
120

was short - All of them identified Appellant in Court as shorter of two assailants - They also
identified Accused 1 from photograph on fake identity card Article 61 - They also stated before
Court that they had identified Appellant in test identification parades held - From forensic
evidence it further appeared that of seventy-two (72) dead, at least six (6) persons fell to shots
fired by Appellant - Therefore there was no difficulty in holding Appellant guilty of multiple
murder, murder with common intention and abetment, attempt to murder with common intention
and abetment, abducting in order to murder, robbery with attempt to cause death or grievous
hurt, and several other allied offences under IPC committing terrorist act punishable Under
Section 16 of Act, 1967, as well as offences under Explosives Act, 1884, Explosive Substances
Act, 1908, and Arms Act, 1959 - Appeal dismissed.  Constitution - Legal aid - Violation of
rights - Whether, there was any violation of any of rights of Appellant under Indian Constitution
- Held, when an individual was taken into custody or otherwise deprived of his freedom by
authorities in any significant way and was subjected to questioning, privilege against self-
incrimination was jeopardized - Procedural safeguards must be employed to protect privilege,
and unless other fully effective means were adopted to notify person of his right of silence and to
assure that exercise of right would be scrupulously honored - Right against self-incrimination
under Article 20(3) was fully incorporated in provisions of Code of Criminal Procedure
(Sections 161, 162, 163 and 164) and Evidence Act, 1872, as manifestations of enforceable due
process, and thus compliance with these statutory provisions was also equal compliance with
Constitutional guarantees - However State was under a constitutional obligation to provide free
legal services to an indigent Accused not only at stage of trial but also at stage when he was first
produced before magistrate as also when he was remanded from time to time - However
Appellant's refusal to accept services of an Indian lawyer and his demand for a lawyer from his
country could not be anything but his own independent decision - Demand for a Pakistani
lawyer in those circumstances, and especially when Pakistan was denying that Appellant was
even a Pakistani citizen, might had been impractical, even foolish, but man certainly did not
need any advice from an Indian Court or authority as to his rights under Indian Constitution - He
was acting quite independently and, in his mind, he was a "patriotic" Pakistani at war with this
country - Appellant asked for a lawyer, apparently convinced by then that no help would come
from Pakistan or anywhere else - He was then immediately provided with a set of two lawyers -
121

Thus there was no question of any violation of any of rights of Appellant under Indian
Constitution - He was offered services of a lawyer at time of his arrest and at all relevant stages
in proceedings - In absence of a lawyer at pre-trial stage was not only as per wishes of Appellant
himself, but that this absence also did not cause him any prejudice in trial - Appeal dismissed. 
Criminal - Conviction - Importation - What was true import of expression "Government of India
- Held, expression "Government of India" was used in Section 121 of IPC to imply Indian State,
juristic embodiment of sovereignty of country that derives its legitimacy from collective will and
consent of its people - However primary and first offence that Appellant and his co-conspirators
committed was offence of waging war against Government of India - It did not matter that target
assigned to Appellant, where they killed a large number of people - What matters was that attack
was aimed at India and Indians - It was by foreign nationals - People were killed for no other
reason than they were Indians in case of foreigners, they were killed because their killing on
Indian soil would embarrass India - Conspiracy in furtherance of which attack was made was
inter alia, to hit at India to hit at its financial centre to try to give rise to communal tensions and
create internal strife and insurgency to demand that India should withdraw from Kashmir and to
dictate its relations with other countries - It was in furtherance of those objectives that attack was
made, causing loss of a large number of people and injury to an even greater number of people -
Nothing could have been more in like manner and by like means as a foreign enemy would do -
Thus Appellant had been rightly held guilty of waging war against Government of India and
rightly convicted Under Sections 121, 121A and 122 of IPC - Appeal dismissed.  Criminal -
Death Sentence - Whether, High Court rightly confirmed death sentences given to Appellant by
trial Court - Held, there was no lowering of standard of fairness and reasonableness in
Appellant's trial and it, therefore, follows that no mitigation in punishment could be asked for on
that score - As to charge of waging war against Government of India and Appellant being
personally responsible for killing of seven (7) people, those were fully in accord with own
findings, arrived at independently, and hence, High Court was quite justified in taking those
facts into account for determining punishment for Appellant - It was unable to accept that
Appellant was a mere tool in hands of Lashkar-e-Toiba - He joined Lashkar-e-Toiba and
continued as its member till end, despite a number of opportunities to leave it - This showed his
clear and unmistakable intention to be a part of organization and participate in its designs - Even
122

after his arrest he regarded himself as a "watan parast", a patriotic Pakistani at war with this
country - Appellant was not acting like an automaton - He killed without slightest twinge of
conscience - This case had element of conspiracy - Appellant was part of a conspiracy hatched
across border to wage war against Government of India and lethal arms and explosives were
collected with intention of waging war against Government of India - Conspiracy was to launch
a murderous attack on Mumbai regarding it as financial centre of country; to kill as many
Indians and foreign nationals as possible; to take Indians and foreign nationals as hostages for
using them as bargaining chips in regard to terrorists' demands and to try to incite communal
strife and insurgency all with intent to weaken country from within - For execution of
conspiracy, Appellant and nine (9) other dead Accused, his accomplices, were given rigorous
and extensive training as combatants - All terrorists, including Appellant, actually acted
according to previous planning - This case had element of waging war against Government of
India and magnitude of war was of a degree as in no other case Appellant was convicted on
charge, among others, of waging war against Government of India - Number of policemen and
members of security forces killed and injured in course of their duty by Appellant - However
this was a case of terrorist attack from across border - Conspiracy behind attack was as deep and
large as it was vicious - Preparation and training for execution was as thorough as execution was
ruthless - Therefore it should also attract rarest of rare punishment - Thus there were no option
but to hold that death penalty was only sentence that could be given to Appellant - Hence,
convictions and sentences of Appellant affirmed - Appeal dismissed. Criminal - Acquittal - High
Court affirmed acquittal of Accused Nos. 2 and 3 respectively recorded by trial Court - Hence,
this Appeal - Whether, acquittal was justified - Held, their connection with other Accused in
case, according to prosecution, was through conspiracy - Accused 2 was said to have prepared,
by hand, maps of various places of Mumbai to facilitate attack by terrorists who landed in city -
One such map was recovered from trouser pocket of deceased Accused No. 1 during inquest and
was seized under seizure panchnama - According to prosecution case, Accused 2 handed over
maps prepared by him to Sabauddin Ahamed in Kathmandu, Nepal and latter sent or delivered
those maps to perpetrators of crime in Pakistan - This part of prosecution case was based on
testimony of (PW-160 -However when attack took place, neither Accused 2 nor Accused 3 were
present in Mumbai - They were in custody of U.P. Police, having been arrested earlier in
123

connection with a terrorist attack on RPF Camp at Rampur - Prosecution had examined a
number of witnesses Evidence of PW.60 was completely unacceptable - Evidences of other
witnesses also did not inspire confidence insofar as these two Accused were concerned -
Moreover, trial Court and High Court had considered evidences relating to these two Accused in
far greater detail - Both Courts had analysed prosecution evidence in regard to two Accused at
great length and have given very good reasons to hold prosecution evidence unworthy of
reliance to hold such grave charges against two Accused - Therefore view taken by trial Court
and High Court was not only correct but on facts of case, that was only possible view - Criminal
Appeal No. 1961 of 2011 dismissed.

.  Amitbhai Anilchandra Shah vs . The Central Bureau of

Investigation and Anr . ( 08 . 04 . 2013 - SC )
124

Case Note: 1. Constitution of India, 1950 - Arts. 32, 14, 20 and 21 -On FIR Investigation by
State Police - On Apex Court directions case taken over by CBI - After investigation, CBI filed
fresh FIR - Maintainability of second FIR - A second FIR in respect of an offence or different
offences committed in the course of the same transaction is not only impermissible but it violates
Art. 21 of the Constitution.The Court has to examine the facts and circumstances giving rise to
both the FIRs add the test of sameness is to applied to find out whether both the FIRs relate to
the same incident in respect of the same occurrence or are in regard to the incidents having two
or more parts of the same transaction. This Court further held that if the answer is in affirmative,
the second FIR is liable to be quashed. It was further held that in case the contrary is proved,
where the version in the second FIR is different and is in respect of the two different
incidents/crimes, the second FIR is permissible. This Court further explained that in case in
respect of the same incident the accused in the first FIR comes forward with a different version
or counterclaim, investigation on both the FIRs has to be conducted. It is clear from the decision
that if two FIRs certain to two different incidents/crimes, second FIR is permissible.Exception
for filing a second FIR. As per the exception carved out in the said case, the second FIR lies in a
case where the first FIR does not contain any allegations of criminal conspiracy.A second FIR
would lie in an event when pursuant to the investigation in the first FIR, a larger conspiracy is
disclosed, which was not part of the first FIR.When the second FIR consists of alleged offences
which are in the nature of the cross case/cross complaint or a counter complaint, such cross
complaint would not be permitted as second FIR.2. F.I.R. - FIR is a report which gives first
information with regard to any offence - There cannot be second FIR in respect of the same
offence/event because whenever any further Information is received by the investigating agency,
it is always in furtherance of the first FIR.3. Criminal Justice - Investigating officers are the
kingpins in the criminal justice system - Their reliable investigation is a leading step towards
affirming complete justice to the victims of the case - They are bestowed with dual duties i.e. to
investigate the matter exhaustively and subsequently collect reliable evidences to establish the
same.Administering criminal justice is a two-end process, where guarding the ensured rights of
the accused under Constitution is as imperative as ensuring justice to the victim. It is definitely a
daunting task but equally a compelling responsibility vested on the court of law to protect and
shield the rights of both. Thus, a just balance between the fundamental rights of the accused
125

guaranteed under the Constitution and the expansive power of the police to investigate a
cognizable offence has to be struck by the court. Accordingly, the sweeping power of
investigation does not warrant subjecting a citizen each time to fresh investigation by the police
in respect of the same incident, giving rise to one or more cognizable offences.4. Criminal
Procedure Code, 1973 - Sec. 173 - On receipt of information about a cognizable offence or an
incident giving rise to a cognizable offence or offences and on entering FIR, the OIC has to
Investigate not merely the cognizable offence reported in the FIR but also other connected
offences found to have been committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in the section - Sub-section (8) of Section
173 of the Code empowers the police to make further investigation, obtain further evidence
(both oral and documentary) and forward a further report (s) to the Magistrate.A case of fresh
investigation based on the second or successive FIRs not being a counter case, filed in
connection with the same or connected cognizable offence alleged to have been committed in
the course of the same transaction and in respect of which pursuant to the first FIR either
investigation is underway or final report under Section 173(2) has been forwarded to the
Magistrate, is liable to be interfered with by the High Court by exercise of power under Section
482 of the Code or under Articles 226/227 of the Constitution.
126

.  Mohd . Arif @ Ashfaq vs . State of NCT of Delhi ( 10 . 08 . 2011 -

SC )

Case Note: (1) Indian Penal Code, 1860 - Sections 120B, 121, 121A, 186, 353, 120B/302,
468/471/474 and 420 read with Section 120B--Arms Act, 1959--Section 25--Explosive
Substances Act, 1908--Section 4--Foreigners Act, 1946--Section 14-- Conspiracy for attack on
Red Fort-- Attack killing three soliders of Indian Army posted there--Conviction and death
sentence to appellant being Pakistani national--Conviction founded on circumstantial evidence--
Case one of most difficult cases to be investigated--Compliments to Investigating Officer and all
other associated with investigation paid--Charge of conspiracy against all accused persons--
Acquittal of other accused not to affect conviction of appellant--Conspiracy well proved--No
reason not to agree with verdict of trial court as well as High Court.There can be no dispute that
in a case entirely dependent on the circumstantial evidence, the responsibility of the prosecution
is more as compared to the case where the ocular testimony or the direct evidence, as the case
may be, is available. The Court, before relying on the circumstantial evidence and convicting the
accused thereby has to satisfy itself completely that there is no other inference consistent with
the innocence of the accused possible nor is there any plausible explanation. The Court must,
127

therefore, make up its mind about the inferences to be drawn from each proved circumstance and
should also consider the cumulative effect thereof. In doing this, the Court has to satisfy its
conscience that it is not proceeding on the imaginary inferences or its. prejudices and that there
could be no other inference possible excepting the guilt on the part of the accused. The Court
respectfully agree with the principles drawn in the mentioned cases and hold that the prosecution
was successful in establishing the mentioned circumstances against the appellant, individually,
as well as, cumulatively. There indeed cannot be a universal test applicable commonly to all the
situations for reaching an inference that the accused is guilty on the basis of the proved
circumstances against him nor could there be any quantitative test made applicable. At times,
there may be only a few circumstances available to reach a conclusion of the guilt on the part of
the accused and at times, even if there are large numbers of circumstances proved, they may not
be enough to reach the conclusion of guilt on the part of the accused. It is the quality of each
individual circumstance that is material and that would essentially depend upon the quality of
evidence. Fanciful imagination in such cases has no place. Clear and irrefutable logic would be
an essential factor in arriving at the verdict of guilt on the basis of the proved circumstances.
Therefore, the present case is such, as would pass all the tests so far devised by the Supreme
Court in the realm of criminal jurisprudence.The investigation in this case was both scientific
and fair investigation. This was one of the most difficult cases to be investigated as there could
have been no clue available to the investigating agency. The small thread which became
available to the investigating agency was the chit found alongwith some Indian currency at the
back of the Red Fort wall in a polythene packet. The Court must pay compliments to the
Investigating Officer S. K. Sand (P.W. 230) as also to all the other associated with the
investigation for being objective and methodical in their approach. It has to be borne in mind
that not a single incidence of ill-treatment to the appellant was reported or proved. Again, the
timely recording of the D.D. Entries, scientific investigation using the computer, the depth of
investigation and the ability of the investigating agency to reach the very basis of each aspect
lend complete credibility to the fairness of the investigation. The Court, therefore, rejects this
argument insofar as the investigating agency is concerned. Similar is the role played by the trial
and the appellate courts. It could not be distantly imagined that the courts below bore any
prejudice. The trial held before the trial Judge was the epitome of fairness, where every
128

opportunity was given to the accused persons and more particularly, to the present appellant.
Similarly, the High Court was also very fair in giving all the possible latitude, in giving patient
hearing to this accused (appellant). The records of the trial and the appellate courts truly justify
these inferences.It is true that out of the original 22 accused persons, ultimately upto this level, it
is only the present appellant who stands convicted. The Court must, however, point out that as
many as 8 accused persons against whom the investigating agency flied a charge-sheet are found
to be absconding. The Investigating Officer had collected ample material during the
investigation against these 8 accused persons who were (1) Sabir alias Sabarulla alias Afgani (A-
12), Sher Zaman Afgani S/o Mohd. Raza (A-13), Abu Haider (A-14), Abu Shukher (A-15), Abu
Saad (A-16), Zahur Ahmad Qasid S/o Gulam Mohd. Qasid (A-17), Bilal Ahmad Kawa S/o All
Mohd. Kawa (A-18) and Athruddin alias Athar Alt alias Salim alias Abdulla S/o Ahmuddin (A-
19). Besides these absconding accused persons, 3 others were Abu Bilal (A-20), Abu Shamal
(A-21) and Abu Suffian (A-22). All these three persons were already dead when the charge-
sheet was filed against them. The charge of conspiracy was against all the accused persons. The
conspiracy also included the dead accused Abu Shamal who was found to be hiding and who
was later killed in exchange of fire with the police. The whereabouts of Abu Shamal were
known only due to the discovery statement by the appellant, in which a very clear role was
attributed to Abu Shamal, who was also a part of the team having entered the Red Fort and
having taken part in the firing and killing of three soldiers. It has also come in the evidence that
the other accused who was absconding in the present case, namely, Abu Bilal (A-20), was killed
in exchange of fire with police in 2002 near Humayun's Tomb. It is to be remembered that the
negative of the photograph of Abu Bilal (A-20) was seized at the time of arrest of the appellant,
from his wallet. Indeed, the act of firing at the Army was not by a single person. The Solicitor
General, therefore, rightly submitted that the case of the prosecution that there was a conspiracy
to attack the Red Fort and kill innocent persons, was not affected even if the other accused
persons who were alleged to have facilitated and helped the appellant, were acquitted. The
question of a single person being convicted for an offence of conspiracy was considered in
Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469. Paragraph 14 thereof is relevant for
us. which is as follows :"14. Another contention raised on behalf of the appellant was that the
other accused having been acquitted by the trial court, the appellant should not have been
129

convicted because the evidence against all of them was the same. There would have been a great
deal of force in this argument, not as a question of principle but as a matter of prudence if we
were satisfied that the acquittal of the other four accused persons was entirely correct. In this
connection the observations of this Court in the case of Dalip Singh v. State of Punjab, 1954 (1)
SCR 145 and of the Federal Court in Kapildeo Singh y. King, (1949) FCR 834, are relevant. It is
not essential that more than one person should be convicted of the offence of criminal
conspiracy. It is enough if the court is in a position to find that two or more persons were
actually concerned in the criminal conspiracy. If the courts below had come to the distinct
finding that the evidence led on behalf of the prosecution was unreliable, then certainly no
conviction could, have been based on such evidence and all the accused would have been
equally entitled to acquittal. But that is not the position in this case as we read the judgments of
the courts below." Once the prosecution proves that there was a meeting of minds between two
persons to commit a crime, there would be an emergence of conspiracy. The fact that barely
within minutes of the attack, the B.B.C. correspondents in Srinagar and Delhi were informed.
proves that the attack was not a brainchild of a single person. The information reached to B.B.C.
correspondent at Srinagar and Delhi sufficiently proves that there was a definite plan and a
conspiracy. Again the role of other militants was very clear from the wireless message
intercepted at the instance of B.S.F. Unless there was a planning and participation of more than
one persons, all this could never have happened. For the execution of the nefarious plans, the
militants (more than one in number) entered under the guise of watching Son et Lumiere show
and while doing so, they smuggled arms inside the Red Fort. It is after the show taking the
advantage of the darkness, they started shooting, in which they first killed the Sentry and then
the other two persons who were the soldiers and then taking further advantage of the darkness,
they scaled over the wall and fled. All this had to be a preplanned attack for which the militants
must have made a proper reconnaissance, must have also found out the placements of Army
barracks and the escape route from the backside of the Red Fort. It was not a stray attack of
some desperados, which was undoubtedly an extremely well-planned attempt to overawe the
Government of India and also to wage war against the Government of India. It has already been
held in Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883, that the evidence as to the
transmission of thoughts sharing the unlawful design would be sufficient for establishing the
130

conspiracy. Again there must have been some act in pursuance of the agreement. The offence
under Section 121 of conspiring to wage a war is proved to the hilt against the appellant, for
which he has been rightly held guilty for the offence punishable under Sections 121 and 121A,
I.P.C. The appellant is also rightly held guilty for the offence punishable under Section 120B,
I.P.C. read with Section 302. I.P.C. (2) Code of Criminal Procedure, 1973--Section 366--Indian
Penal Code, 1860--Sections 121 and 302/120B--Attack on Red Fort killing three Indian soldiers
stationed thereat--Trial court awarded death sentence to appellant under Section 121 for waging
war against Government of India--Death sentence also awarded for offence under Section 120B
read with Section 302 for committing three murders inside Red Fort--High Court concurred with
finding being rarest of rare case--This was nothing but undeclared war by some foreign
mercenaries like appellant--And his other partner in conspiracy--Attack on Red Fort being place
of honour for Indians--Nothing but attempt to question sovereignty of India--Hence, this is rarest
of; rare case--Judgment of trial court and High Court convicting accused and awarding death
sentence confirmed--All other sentences on all other counts--Also confirmed.The trial court
awarded the death sentence to the appellant Mohd. Arif alias Ashfaq for the offence under
Section 121, I.P.C. for waging war against the Government of India. Similarly, he was awarded
death sentence for the offence under Section 120B read with Section 302, I.P.C. for committing
murder of Naik Ashok Kumar, Uma Shankar and Abdullah Thakur inside the Red Fort on
22.12.2000. For the purpose of the sentences, the other convictions being of minor nature are not
relevant. On a reference having been made to it, the High Court ultimately confirmed the death
sentence. The High Court also concurred with the finding of the trial court that this was a rarest
of the rare case. The High Court has observed that the counsel appearing for him did not
highlight any mitigating circumstance justifying the conversion of death sentence to life
imprisonment perhaps because the learned counsel was conscious of the futility of the
submission. The High Court specifically found that accused had hatched a conspiracy to attack
the Indian Army stationed inside the national monument for protecting it from any invasion by
the terrorists and had executed also that conspiracy with the help of his other associate militants
and in that process they had killed three army jawans and more could also have lost their lives
but for the immediate retaliation by the members of the Quick Reaction Team of the Army. In
that view, the High Court concurred with the finding of this being a rarest of the rare case.This
131

was a unique case where Red Fort, a place of paramount importance for every Indian heart was
attacked where three Indian soldiers lost their lives. This is a place with glorious history, a place
of great honour for every Indian, a place with which every Indian is attached emotionally, and a
place from where our first Prime Minister delivered his speech on 15th August, 1947, the day
when India broke the shackles of foreign rule and became a free country. It has since then been a
tradition that every Hon'ble Prime Minister of this country delivers an address to the nation on
every 15th August to commemorate that great event. This Fort was visualized and constructed
by Mughal Emperor Shahjahan who is known as "Shahjahan the builder". It took nine years for
its completion. It was here that Shahjahan ascended the Throne on 18th April, 1648 amidst
recitation of sacred Aayates of Holy Quran and mantras from Hindu scriptures. The great
historical monument thereafter saw the rule of number of Mughal Emperors including
Aurangzeb. It also saw its most unfortunate capture by Nadir Shah. It was in 1837, the last
Mughal Emperor Bahadurshah Zafar II took over the Throne. It must be remembered that it was
during the empire of Bahadurshah Zafar II that the first war of Independence was fought. The
Red Fort became the ultimate goal during that war of Independence which broke out in the
month of May, 1857. The Fort breathed free air for a brief period. But ultimately in the month of
September, 1857, it was captured by the British, Red Fort is not just one of the several
magnificent monuments that were built by the Mughal emperors during their reign for nearly
three centuries. It is not just another place which people from within and outside the country
visit to have a glimpse of the massive walls on which the Fort stands or the exquisite
workmanship it displays. It is not simply a tourist destination in the capital that draws thousands
every year to peep and revel into the glory of the times by gone. Its importance lies in the fact
that it has for centuries symbolised the seat of power, in this country. It has symbolised the
supremacy of the Mughal and the British empires just as it symbolises after independence the
sovereignty of the world's largest democratic republic. It is a national symbol that evokes the
feelings of nationalism amongst the countrymen and reminds them of the sacrifices that the
freedom fighters made for the liberation of this country from foreign rule. No wonder even after
the fall of the fort to the British forces in the first war of independence in 1857 and the shifting
of the seat of power from the Red Fort to the Calcutta and later to New Delhi, Pt. Jawahar Lal
Nehru after his historic Tryst with Destiny" speech unfurled the tricolor from the ramparts of the
132

Red Fort on 15th August, 1947. That singular event symbolised the end of the British rule in this
country and the birth of an independent India. An event that is relived and re-acted every
succeeding year since 1947, when every incumbent Prime Minister addresses the nation from
atop this great and historic Fort reminding the countrymen of the importance of freedom, the
need for its preservation and the values of constitutional democracy that guarantees the freedoms
so very fundamental to the preservation of the unity and integrity of this country. An attack on a
symbol that is so deeply entrenched in the national psyche was therefore, nothing but an attack
on the very essence of the hard earned freedom and liberty so very dear to the people of this
country. An attack on a symbol like Red Fort was an assault on the nation's will and resolve to
preserve its integrity and sovereignty at all costs. It was a challenge not only to the Army
battalions stationed inside the monument but the entire nation. It was a challenge to the very
fabric of a secular constitutional democracy this country has adopted and every thing that is
good and dear to our countrymen. It was a blatant, brazenfaced and audacious act aimed to over
awe the Government of India, It was meant to show that the enemy could with impunity reach
and destroy the very vitals of an institution so dear to our fellow countrymen for what it signified
for them. It is not for no reason that whosoever comes to Delhi has a yearning to visit the Red
Fort. It is for these reasons that this place has become a place of honour for Indians. No one can
ever forget the glorious moments when the Indians irrespective of their religions fought their
first war of Independence and shed their blood. It was, therefore, but natural for the foreigner
enemies to plan an attack on the army specially kept to guard this great monument. This was not
only an attack on Red Fort or the army stationed therein, this was an arrogant assault on the self
respect of this great nation. It was a well thought out insult offered to question the sovereignty of
this great nation by foreign nationals. Therefore, this case becomes a rarest of rare case. This
was nothing but an undeclared war by some foreign mercenaries like the present appellant and
his other partner in conspiracy Abu Shamal and some others who either got killed or escaped. In
conspiring to bring about such kind of attack and then carrying out their nefarious activities in
systematic manner to make an attack possible was nothing but an attempt to question the
sovereignty of India. Therefore, even without any reference to any other case law, the Court
holds this case to be the rarest of rare case.A conspiracy to attack the Indian Army unit stationed
in Red Fort and the consequent unprovoked attack cannot be described excepting as waging war
133

against India and there can be no question of compromising on this issue.In fact, this is a unique
case where there is one most aggravating circumstance that it was a direct attack on the unity,
integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is
apart from the fact that as many as three persons had lost their lives. The conspirators had no
place in India. Appellant was a foreign national and had entered India without any authorization
or even justification. This is apart from the fact that the appellant built up a conspiracy by
practicing deceit and committing various other offences in furtherance of the conspiracy to wage
war against India as also to commit murders by launching an unprovoked attack on the soldiers
of Indian Army. Therefore, there are no doubts that death sentence was the only sentence in the
peculiar circumstance of this case.

67. 

A
MI
TB
HA
I
AN
IL
CH
AN
134

DR
A
SH
AH
VS
.
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NT
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OF
IN
VE
ST
IG
AT
IO
N
AN
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AN
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( 0
8 .
04 .
135

201
3 -
SC
)

Case Note: 1. Constitution of India, 1950 - Arts. 32, 14, 20 and 21 -On FIR Investigation by
State Police - On Apex Court directions case taken over by CBI - After investigation, CBI filed
fresh FIR - Maintainability of second FIR - A second FIR in respect of an offence or different
offences committed in the course of the same transaction is not only impermissible but it violates
Art. 21 of the Constitution.The Court has to examine the facts and circumstances giving rise to
both the FIRs add the test of sameness is to applied to find out whether both the FIRs relate to the
same incident in respect of the same occurrence or are in regard to the incidents having two or
more parts of the same transaction. This Court further held that if the answer is in affirmative, the
second FIR is liable to be quashed. It was further held that in case the contrary is proved, where
the version in the second FIR is different and is in respect of the two different incidents/crimes,
the second FIR is permissible. This Court further explained that in case in respect of the same
incident the accused in the first FIR comes forward with a different version or counterclaim,
investigation on both the FIRs has to be conducted. It is clear from the decision that if two FIRs
certain to two different incidents/crimes, second FIR is permissible.Exception for filing a second
FIR. As per the exception carved out in the said case, the second FIR lies in a case where the first
FIR does not contain any allegations of criminal conspiracy.A second FIR would lie in an event
when pursuant to the investigation in the first FIR, a larger conspiracy is disclosed, which was not
part of the first FIR.When the second FIR consists of alleged offences which are in the nature of
the cross case/cross complaint or a counter complaint, such cross complaint would not be
permitted as second FIR.2. F.I.R. - FIR is a report which gives first information with regard to
any offence - There cannot be second FIR in respect of the same offence/event because whenever
136

any further Information is received by the investigating agency, it is always in furtherance of the
first FIR.3. Criminal Justice - Investigating officers are the kingpins in the criminal justice system
- Their reliable investigation is a leading step towards affirming complete justice to the victims of
the case - They are bestowed with dual duties i.e. to investigate the matter exhaustively and
subsequently collect reliable evidences to establish the same.Administering criminal justice is a
two-end process, where guarding the ensured rights of the accused under Constitution is as
imperative as ensuring justice to the victim. It is definitely a daunting task but equally a
compelling responsibility vested on the court of law to protect and shield the rights of both. Thus,
a just balance between the fundamental rights of the accused guaranteed under the Constitution
and the expansive power of the police to investigate a cognizable offence has to be struck by the
court. Accordingly, the sweeping power of investigation does not warrant subjecting a citizen
each time to fresh investigation by the police in respect of the same incident, giving rise to one or
more cognizable offences.4. Criminal Procedure Code, 1973 - Sec. 173 - On receipt of
information about a cognizable offence or an incident giving rise to a cognizable offence or
offences and on entering FIR, the OIC has to Investigate not merely the cognizable offence
reported in the FIR but also other connected offences found to have been committed in the course
of the same transaction or the same occurrence and file one or more reports as provided in the
section - Sub-section (8) of Section 173 of the Code empowers the police to make further
investigation, obtain further evidence (both oral and documentary) and forward a further report
(s) to the Magistrate.A case of fresh investigation based on the second or successive FIRs not
being a counter case, filed in connection with the same or connected cognizable offence alleged
to have been committed in the course of the same transaction and in respect of which pursuant to
the first FIR either investigation is underway or final report under Section 173(2) has been
forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power
under Section 482 of the Code or under Articles 226/227 of the Constitution.

A
137

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s
.
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138

.
0
5

.
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Case Note: Criminal - Nature of Offence - Sections 96, 97, 98, 99, 300, 302 and 304 Part 1 of
Indian Penal Code, 1860 - Appellant/first Accused, was convicted by Additional Sessions Judge
for murder of deceased and for causing grievous hurt to wife of deceased - On Appeal, High
Court confirmed conviction passed by trial Court against Appellant - Hence, present Appeal -
Whether Appellant proved that he acted in right of private defence - Held, mere fact that other
seven Accused were acquitted or that some of prosecution witnesses were also convicted would
not be sufficient to hold that Appellant was not aggressor - There were some minor injuries on
Accused - Deceased was unarmed so also his wife and son - Accused was armed with a knife -
There was no evidence to show that deceased, his wife or his son, had ever attacked Accused -
139

Right of private defence was available only when there was a reasonable apprehension of
receiving injury - It was for Accused claiming right of private defence, to place necessary
material on record either by himself adducing positive evidence or by eliciting necessary facts
from witnesses examined for prosecution, if a plea of private defence was raised - A plea of right
of private defence could not be based on surmises and speculation - In order to find whether right
of private defence was available to an Accused, entire incident must be examined with care and
viewed in its proper setting - Section 97 of IPC, dealt with subject matter of right of private
defence - Plea of right comprised body or property of person exercising right or of any other
person, and right might be exercised in case of any offence against body, and in case of offences
of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to
property - Sections 96 and 98 of IPC, gave a right of private defence against certain offences and
acts - Section 99 of IPC, laid down limits of right of private defence - To plea a right of private
defence extending to voluntary causing of death, Accused must show that there were
circumstances giving rise to reasonable grounds for apprehending that either death or grievous
hurt would be caused to him - There was nothing to show that deceased, his wife, his son or
others had attacked Appellant, nor surrounding circumstances would indicate that there was a
reasonable apprehension that death or grievous hurt was likely to be caused to Appellant by them
or others - Therefore, plea of private defence was, had no basis - There was no premeditation and
act was committed in a heat of passion - Appellant had not taken any undue advantage or acted in
a cruel manner - There was a fight between parties - Therefore, this case fell under fourth
exception to Section 300 of IPC - Hence, it was just and proper to alter conviction from Section
302 of IPC to Section 304 Part 1 of IPC - Appeal disposed of

. 

M.
M
AN
O
140

HA
R
RE
DD
Y
AN
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AN
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VS
.
UN
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OF
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( 0
4 .
02 .
201
3 -
SC
141

Case Note: Service - Appointment - Maintainability - Notification was issued for appointing
Respondent No. 3 as judge of Andhra Pradesh High Court and Respondent No. 3 took oath and
assumed office as judge of High Court - Hence, this writ Petition - Whether, appointment of
Respondent No. 3 could be quashed and whether, writ Petition professed to have been filed in
public interest was ruse to malign Respondent No. 3 - Held, at time Respondent No. 3 was being
considered for appointment as judge of High Court, he was unaware of any case being pending in
which he was named as an Accused and it was quite wrong to refer to him as "an absconder and a
proclaimed offender" in case - Further it was not case of suppression of any material fact by
Respondent No. 3 or at his behest - From record it was evident that none of members of High
Court or Supreme Court Collegia was aware of fact that Respondent No. 3 had any pending
criminal case - State Government was equally unaware of fact and so was Central Government as
was evident from resume prepared by Law Ministry as also IB Report - Therefore, not only
Respondent No. 3 himself, but practically no one was aware of pendency of case in which he was
named as an accused - Hence, no case was made out for quashing appointment of Respondent No.
3 as judge of Andhra Pradesh High Court - However, writ Petition owed its origin to news report
published and after news broke out, Petitioners seem to have collected record of criminal case and
filed writ petition on that basis - Writ Petition was drafted with some skill and it presented facts
of criminal case in rather twisted way in an attempt to portray Respondent No. 3 in bad light -
Moreover way writ Petition was drafted shows that Petitioners were competent and experienced
counsel - Thus, writ Petition was not sincere and honest endeavour to correct something which
Petitioners truly perceive to be wrong but real intent of Petition was to malign Respondent No. 3
and writ Petition was not only without merit but also wanting in bona fides - Writ Petition
dismissed.Ratio Decidendi"If Petition was not sincere and honest endeavor to correct something,
142

then Petition was held to malign Respondent."

58. 

Sat
bir
@
La
kh
a
vs .
Sta
te
of
Ha
rya
na
( 1
8 .
10 .
201
2 -
SC
)
143

Case Note: Criminal - Attempt to murder - Sections 34, 307 and 323 of Indian Penal Code, 1869
(IPC) - Present Appeal filed against conviction under Sections 34, 307 and 323 of IPC - Held,
after considering conclusion of trial Court, which was also affirmed by High Court, present Court
found that there was no contra evidence to take different view than what had been held by trial
Court - Though it was claimed that knife injury sustained by Appellant was at hands of concerned
witness, it was for Appellant to have led necessary evidence in support of said claim - There were
nothing on record to support said stand - It appeared that responsibility of colleting donations was
entrusted to Appellant and said stand of prosecution was not in dispute - Happening of occurrence
over issue relating to collection of donation, available balance of such collection and suggestion
of one of members of complaining party to use said available balance amount for benefit of
temple were never disputed - If that be so, when indisputably Appellant was responsible for
collection and spending of donation amount for temple celebrations, it was natural that
complainant and Accused party who were youngsters and who were stated to be fully involved in
celebrations of temple festival felt that entirety of donation amount collected should be spent out
and it should not go to personal benefit of any one individual with whom collection was entrusted
- Apparently Appellant who was enraged by questioning of his authority about collection made
and balance amount available with him, felt insulted who apparently threw challenge to
complaining party which was ended in fateful occurrence of causing injuries on concerned
witnesses who had to ultimately face wrath of Appellant and his supporters - Apart from simple
knife injuries sustained by Appellant, other injuries were admittedly by a blunt weapon which
could have been caused by throwing of brickbats at instance of injured witnesses which was also
admitted - When injured witnesses were attacked and Accused No. 1 had come there with knife
by which he caused injuries and other Accused other than Accused No. 3 aided him to cause such
injuries which intention was gathered at moment of occurrence, injured witnesses could have
made every attempt to save themselves by throwing brickbats which would have been available
on road against Accused in order to save themselves from any further attack - Therefore, no fault
could be found with said action of injured witnesses which would have caused some minor
injuries on Appellant and other Accused - Considering evidence and reasoning of trial Court as
144

well as that of High Court, present Court convinced that conviction and sentence imposed on
Appellant under Sections 307, 323 read with Section 34 of IPC was made out - Appeal dismissed

. 

S
h
y
a
m
a
l
G
h
o
s
h
v
s
.
S
t
a
t
e
o
f
W
145

e
s
t
B
e
n
g
a
l
(
1
1
.
0
7
.
2
0
1
2
-
S
C

)
146

Case Note: Criminal - Conviction - Legality of - Common Intention - Sections 201, 34 and
Section 302 Indian Penal Code, 1860 (IPC) - High Court, vide its judgment, while answering
death reference in negative, acquitted all Accused persons of offence under Section 379 read with
Section 34 of IPC - . However, Court sustained their conviction under Section 302 read with
Section 34 of IPC and - High Court maintained sentence imposed upon Accused by trial Court
under Section 201 read with Section 34 of IPC was sustained - Hence, this appeal - Held,
discrepancies or omissions had to be material ones and then alone, they might amount to
contradiction of some serious consequence - Every omission could not take the place of a
contradiction in law and therefore, be foundation for doubting case of prosecution - Section 34 of
IPC applies where two or more accused are present and two factors must be established i.e.
common intention and participation of accused in crime - Section 34 involves vicarious liability
and therefore, if intention is proved but no overt act was committed, Section 34 could still be
invoked - It provides that a person can also be held vicariously responsible for act of others, if he
had common intention to commit act - Ingredients of more than two persons being present,
existence of common intention and commission of an overt act stood established in present case -
Statements of witnesses clearly showed that all eight Accused were present at scene of occurrence
- They had demanded money and extended threat of dire consequences, if their demand was not
satisfied - Thereafter, they had altercation with deceased and deceased was strangulated by
Accused persons; and then his body was disposed of by cutting it into pieces and packing it in
gunny bags and abandoning it at a deserted place near Highway - Thus, all acts obviously were in
furtherance to common intention of doing away with deceased, if he failed to give them money as
demanded - Offence was committed with common intention and collective participation - Various
acts were performed by different accused in presence of each one of them - Each of the accused
had common intention - There was no reason to interfere with judgment of High Court either on
merits or on quantum of sentence - Appeals dismissed.Minor contradictions, inconsistencies or
embellishments of trivial nature which did not affect core of prosecution case should not be taken
to be a ground to reject prosecution evidence in its entirety - It was only when such omissions
amounted to a contradiction creating a serious doubt about truthfulness or creditworthiness of
witness and other witnesses also made material improvements or contradictions before Court in
order to render the evidence unacceptable, that Courts might not be in a position to safely rely
147

upon such evidence - Serious contradictions and omissions which materially affected case of
prosecution had to be understood in clear contra-distinction to mere marginal variations in
statement of witnesses - Prior might have effect in law upon evidentiary value of prosecution
case; however, latter would not adversely affect case of prosecution. Another settled rule of
appreciation of evidence was that, Court should not draw any conclusion by picking up an
isolated portion from testimony of a witness without adverting to statement as a whole -
Sometimes, it might be feasible that, admission of a fact or circumstance by witness was only to
clarify his statement or what had been placed on record - Where it was a genuine attempt on part
of a witness to bring correct facts by clarification on record, such statement must be seen in a
different light to a situation where contradiction was of such a nature that it impaired his evidence
in its entirety - Essence of Section 34 of Act, was simultaneous consensus of mind of persons
participating in criminal action to bring about a particular result - It was trite to record that, such
consensus could be developed at spot - Ingredients of more than two persons being present,
existence of common intention and commission of an overt act stand established in present case -
Statements of witnesses clearly showed that, all eight accused were present at scene of occurrence
- They had demanded money and extended threat of dire consequences, if their demand was not
satisfied - Thereafter, they had altercation with deceased and deceased was strangulated by
Accused persons and then his body was disposed of by cutting it into pieces and packing same in
gunny bags and abandoning same at a deserted place near Barrackpore Dum Highway - Thus, all
these acts were in furtherance to common intention of doing away with deceased, if he failed to
give them Rs. 40,000/- as demanded - Offence was committed with common intention and
collective participation - Various acts were performed by different accused in presence of each
one of them - Each of Accused had common intention - No reason to interfere with judgment of
High Court either on merits or on quantum of sentence - Appeals dismissed
148

+)

  T . Shankar Prasad vs . State of Andhra Pradesh ( 12 . 01 . 2004 -

SC )

Case Note: (1)Prevention of Corruption Act, 1988 - Sections 7, 11, 13 (1) (d)/13 (2) and 20--
Indian Penal Code, 1860--Section 120B--Bribery-- Trap--Conviction and sentence--Whether
sustainable?--Held, “yes”--Evidence clearly showing that A1 directed money to be paid to A-2--
Stand that money was received by A2 as advance tax without any substance as tax due fully
paid--Though complainant P.W. 1 did not stick to his statement during investigation and made
feeble attempt to show that he has not implicated A-2--Does not totally obliterate his evidence--
P.W. 1 did not totally resile from his earlier statement--Only half-hearted attempt to partially
shield A-2--When money recovered from pocket of A-2--Presumption under Section 20 is
obligatory--Involvement of both accused in well-planned and cleverly managed device to
systematically collect money--Stood sufficiently established--A-2 not offering his explanation
immediately after recovery of money--Hence, High Court’s judgment is irreversible.#The
expressions “may presume” and “shall presume” are defined in Section 4 of the Indian Evidence
Act, 1872. The presumptions falling under the former category are compendiously known as
“factual presumptions” or “discretionary presumptions” and those falling under the latter as “legal
presumptions” or “compulsory presumptions”. When the expression “shall be presumed” is
employed in Section 20 (1) of the Prevention of Corruption Act, 1988, it must have the same
import of compulsion. When the sub-section deals with legal presumption, it is to be understood
as in terrorem, i.e., in tone of a command that it has to be presumed that the accused accepted the
gratification as a motive or reward for doing or forbearing to do any official act etc., if the
condition envisaged in the former part of the section is satisfied. The only condition for drawing
such a legal presumption is that during trial it should be proved that the accused has accepted or
149

agreed to accept any gratification. The section does not say that the said condition should be
satisfied through direct evidence. Its only requirement is that it must be proved that the accused
has accepted or agreed to accept gratification.#Presumption is an inference of a certain fact drawn
from other proved facts. While inferring the existence of a fact from another, the Court is only
applying a process of intelligent reasoning which the mind of a prudent man would do under
similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it
could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule
indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can
draw an inference and that would remain until such inference is either disproved or dispelled.#On
a close reading of complainant P.W. 1’s evidence it appears that he has not really given a clean
chit to the accused persons. Though a feeble attempt was made to show that he has not implicated
A-2, in fact that is really not of significance when his evidence is read along with the evidence of
other witnesses. The evidence clearly shows that A-1 directed the money to be paid to A-2. The
stand of accused about nature of receipt of the money is also not consistent. The stand was taken
as if the money was received by A-2 for the payment of the advance tax. The documents brought
on record go to show that there was no necessity for paying any advance tax. In fact the official
records indicate that the tax due was fully paid. Therefore, the plea that the amount was paid as
advance tax is clearly without substance. The fact that P.W. 1 did not stick to his statement made
during investigation does not totally obliterate his evidence. Even in criminal prosecution when a
witness is cross-examined and contradicted with the leave of Court by the party calling him, his
evidence cannot as a matter of law be treated as washed off record altogether. It is for the Judge
of fact to consider in each case whether as a result of such cross-examination and contradiction,
the witness stands thoroughly discredited or can still be believed in regard to a part of his
testimony. If the Judge finds that in the process the credit of the witness has not been completely
shaken, he may after reading and considering the evidence of the said witness, accept in the light
of other evidence on record that part of his testimony which he found to be creditworthy and act
upon it. P.W. 1 did not totally resile from his earlier statement. There was only a half-hearted
attempt to partially shield A-2. P.W. 1 has categorically stated that he had paid the money to A-2
as directed by A-1. The plea of A-2 that he had accepted the money as advance tax has been
rightly discarded being contrary to official records. Evidence of P.W. 2 with regard to
150

proceedings on 28.4.1992 has been clearly established. Evidence of P.W. 4, the mediator is
corroborated by the evidence of P.Ws. 1, 3, 7 and 8. His report was marked as Ext. P. 13. The
same along with the other evidence clearly establishes the accusations against both the accused.
When money was recovered from the pocket of one of the accused persons, a presumption under
Section 20 of the Act is obligatory. It is a presumption of law and casts an obligation on Court to
operate it in every case brought in Section 7. The presumption is a rebuttable presumption and it
is by proof and not by explanation which may seem to be plausible. The evidence of P.Ws. 4, 5, 7
and 8 read with the evidence of P.W. 1 established recovery of money from A-2. A belated and
stale explanation was offered by A-2 that the money was paid towards tax. This plea was rightly
discarded as there was no tax due and on the contrary the complainant was entitled to some
refund. An overall consideration of the materials sufficiently substantiates, in the case on hand,
the prevalence of a system and methodology cleverly adopted by the accused that the demand will
be specified when both the accused were present and thereafter as and when A-1 puts his
signature, the party has to meet A-2, at his seat for fixing the seal and making entry in the
Register to make the process complete only after collecting the amount already specified by A-1
in A-2’s presence. The involvement of both of them in a well planned and cleverly managed
device to systematically collect money stood sufficiently established on the evidence led in by the
prosecution. Further A-2 did not offer his explanation immediately after the recovery of money.
When the factual position is examined in the background of legal principles culled out from
various decisions of the Supreme Court, the inevitable conclusion is that the High Court’s
judgment is irreversible.#(2) Prevention of Corruption Act, 1988--Sections 7, 11, 13 (1) (d) and
13 (2)--Indian Penal Code, 1860--Section 120B--Bribery--Conviction and sentence --But
acquittal for charge of criminal conspiracy--Whether accused entitled to be acquitted for charge
of bribery also?--Held, “no”--If charge of conspiracy followed by substantive charge--Accused
can be convicted for substantive charge even if charge of conspiracy not established.

. 

HI
151

RA
M
AN
VS
.
ST
AT
E
OF
M
AH
AR
AS
HT
RA
( 3
1 .
01 .
201
3 -
SC
)

Case Note: Criminal - Conviction - Admissibility of dying declaration - Sections 302 and 498-A
of Indian Penal Code, 1860 (IPC) - High Court had confirmed order passed by trial Court of
conviction of Appellant under Section 302 of IPC though one under Section 498-A of IPC was
152

set-aside for lack of sufficient evidence - Hence, this Appeal - Whether conviction orders passed
by Courts below were justified - Held, there were two dying declarations recorded at earliest
opportunity and they contained motive for crime and reasons as to why deceased suffered burn
injuries viz., greed of Appellant to which deceased had refused to succumb - As far as statements
of deceased, that Appellant had poured kerosene and set her on fire was concerned, there was no
reason to discard it considering fact that it was made at earliest opportunity and on solemn
occasion - Defence put up story which was totally inconsistent with facts which had come on
record and was clear afterthought and therefore unacceptable - In fact this case clearly shows an
attempt to put up totally false defence by Appellant - Prosecution had undoubtedly proved its case
beyond any reasonable doubt - Hence there was no reason to interfere in judgment and order
rendered by trial Court as modified and confirmed by High Court - Appeal dismissed.

. 

R
A
T
T
I
R
A
M
A
N
D
O
R
S
153

.
V
S
.
S
T
A
T
E
O
F
M
.
P
.
T
H
R
O
U
G
H
I
N
S
P
E
C
T
O
154

R
O
F
P
O
L
I
C
E
(
18
.
04
.
20
13
-
S
C
)

Case Note: Criminal - Conviction - Sections 302 and 149 of Indian Penal Code, 1860 - High
Court concurred with judgment of conviction and order of sentence passed by Additional
Sessions Judge except in respect of Appellant No. 2 before wherein present Appellants along with
Appellant No. 2 stood convicted for offences under Section 302 read with Section 149 of Code
and other offences and sentenced to imprisonment for life with fine - Hence, this Appeal -
155

Whether, all Appellants were present at time of occurrence and had participated in assault or not
and whether judgment of conviction and order of sentence passed by Court below was proper-
Held, Chhotelal exhorted and other accused persons namely Dhaniram, Mohan, Badri and
Govardhan had assaulted deceased and there was ample evidence on record to safely conclude
that they formed unlawful assembly and there was common object to assault deceased who
eventually succumbed to injuries inflicted in assault - As far as other accused persons namely
Babulal, Satyanarayan, Rattiram, Kanchedi, Ramcharan and Ramesh were concerned there were
really contradictory statements with regard to presence of accused persons because PW-12 has
stated that Babulal was not present at place of occurrence - PW-5, contradicted himself about
weapons carried by Kanchedi, Ramcharan, Ramesh and Gorelal - PW-12 had not mentioned
anything about Ramesh and Govardhan - From apparent contradictions from depositions of PW-5
and PW-12 it seemed that they have implicated Babulal, Satyanarayan, Rattiram, Ramesh and
Ramcharan in crime - PW-5 had clearly stated that Govardhan and Badri hit Daulat with sticks on
back and neck and medical evidence corroborated same - Nothing was elicited in cross-
examination of PW-5 to discard his testimony - It come out in evidence of PW-13 that PW-5 was
going along with Babulal, Kanchedi and his brother - There was attempt to implicate number of
persons - Deceased was involved in many criminal offences and there was some bad blood
between accused persons and Deceased - Hence, it was not unusual to implicate some more
persons as accused along with real assailants - It was not safe to hold that accused-Appellants
Ramesh, Kanchedi, Rattiram and Satyanarayan were present at spot and it would be inappropriate
to record conviction in aid of Section 149 of Code - Further, when there was delayed despatch of
FIR it was necessary on part of prosecution to give explanation for delay - Purpose behind
sending copy of FIR to concerned magistrate was to avoid any kind of suspicion being attached to
FIR - There was possibility of FIR being ante-timed or ante-dated - Evidence could not be thrown
overboard as version of witnesses deserved credence - Thus, judgment of conviction and order of
sentence recorded against Appellants namely Dhaniram, Mohan, Badri and Govardhan was
affirmed - Therefore, other accused-Appellants were acquitted and as they were on bail were
discharged from their bail bonds - Appeal partly allowed.Ratio Decidendi"Mere presence in an
assembly does not make person a member of an unlawful assembly unless it is shown that he had
done something or omitted to do something which would make him a member of an unlawful
156

assembly and shall not be liable for conviction."

. 

Ra
kh
al
De
bn
ath
vs .
Sta
te
of
We
st
Be
ng
al (
04 .
09 .
201
2 -
SC
)
157

Case Note: Criminal - Conviction - Sections 306 and 498A of Indian Penal Code, 1860 (I.P.C.) -
High Court while reversing judgment of Trial Court found Appellant guilty for an offence
committed under I.P.C. - Hence, this Appeal - Whether, High Court rightly convicted Appellant -
Held, from extent of burn injuries stated by doctor in postmortem report it was clear that it could
have been caused only by pouring kerosene from cane over head and by burning person after that
- Therefore, conclusion of High Court in having held that Deceased committed suicide could not
be found fault with - Further, High Court while examining charge of abetment of suicide
committed by Deceased as well as cruelty meted out to her falling under Sections 306 and 498A
of I.P.C. made detailed analysis of evidence and held that charges were proved - Relevant criteria
for Application of Section 113A was duly attracted - However, Deceased committed suicide
within 35 days from date of her marriage and allegation of cruelty was also fully established -
Thus, conduct of Appellant and Deceased coupled with consequential demand of money from
P.W. 3\father of Deceased and also pledging of jewels of Deceased fully established case of
Prosecution that Deceased was instigated by Appellant to take extreme decision of committing
suicide by pouring kerosene on herself and set herself on fire and thereby charge of abetment
under Section 306 and as well as Section 498A stood proved - Appeal dismissed.

CONCLUSION
The category of inchoate criminal conduct is generally understood to be substantial in some
senses of that word—both large and important. At the same time, however, the definition of the
category has thus far lacked substance, itself remaining inchoate: unclear, undeveloped, and
amorphous. The foregoing discussion, though also inchoate—tentative, preliminary—in its own
right, has sought to give firmer shape to this significant but slippery class of crimes. If the
account I have offered is not persuasive, hopefully it might at least stimulate some effort to
provide a better account that would fill the current conceptual void, or else serve to demonstrate
158

that this often-used categorization is fundamentally incoherent and/or unhelpful and should
simply be abandoned.

attempts, where the defendant has taken steps "towards carrying out a complete crime",
Historically speaking, the law of attempts exemplifies the criminal law’s failure to achieve its
doctrinal ideals of simplicity, definition and transparency. Consequently the interpretation of
criminal law has been influenced by the vagaries of each case and the future possibility of
producing principles, specific and exact, appears black. It is only right therefore that the courts
apply their judiciousness appropriately so that the law of attempts fits into the altered parameters
of criminal law correctly.incitement, where the defendant has encouraged others to commit a
crime, and conspiracy, where the defendant has agreed with others to commit a crime. In each
case, the defendant "has not himself performed the actus reus but is sufficiently close to doing
so, or persuading others to do so, for the law to find it appropriate to punish him". Inchoate
crimes have deep historical roots in both common law and civil law systems. Incitement is
prosecuted in essentially every jurisdiction as either a means to accomplish a crime or a
substantive offense on its own. Group criminality has been addressed by both a “conspiracy”
standard (traditionally in common law systems) and a “criminal organization” standard
(traditionally in civil law systems). Both incitement and group criminality have been punished
by international tribunals, showing that opinio juris backs the introduction of such crimes into
the customary international law. In order to punish violations of international law, the
international community should formally recognize the existence of customary norms on
inchoate crimes, to facilitate domestic prosecution of crimes against the law of nations.
159

BIBLIOGRAPHY
PRIMARY SOURCES:
 THE INDIAN PENAL CODE,1860

 CRIMINAL MANUAL, 2013

 THE FREE DICTIONARY


160

SECONDARY SOURCES:
 COMMENTARY ON THE INDIAN PENAL
CODE,1860 -----------K.D.GAUR

 COMMENTARY ON THE INDIAN PENAL CODE

1860 -------------- MULLA

 THE INDIAN PENAL CODE

----------- PILLAI
161

WIBLIOGRAPHY
 www.manupatra.com

 www.scconline.com

 www.legalservices.com

 www.indiankanoon.com

 www.lawyersclubndia.com

 www.thehindu.com

 www.hindustantimes.com

 www.thetimesofindia.com

 www.wikipedia.com

 ARTICLES

 MAGZINES


162