BILAL HAJAR @ ABDUL HAMEED versus STATE REP. BY THE INSPECTOR OF POLICE on 10 October 2018

BILAL HAJAR @ ABDUL HAMEED

v.

STATE REP. BY THE INSPECTOR OF POLICE

(Criminal Appeal No. 1305 of 2008)

OCTOBER 10, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Penal Code, 1860 – s. 120-B – Conviction under – Prosecutioncase was that the nine accused (A-1 to A-9) hatched a criminalconspiracy in the house of appellant (A-6) to murder the victim –Trial Court convicted A-1 to A-9 u/s.120-B IPC, A-1 to A-5 u/ss.148 and 302 IPC, and A-1 u/s. 332 IPC – High Court upheld theconviction of the accused, except that of accused (A-9) who wasacquitted and conviction of accused (A-2) u/s.120-B IPC was setaside – A-6 alone filed appeal against his conviction u/s.120-B IPC– Held: In order to constitute a conspiracy, meeting of mind of twoor more persons to do an illegal act or an act by illegal means is amust – However, it is not necessary that all the conspirators mustknow each and every detail of the conspiracy, which is being hatchedand nor it is necessary to prove their active part/role in such meeting –In other words, their presence and participation in such a meetingalone is sufficient – In instant case, evidence of PW-3 and PW-4proved the factum of meeting being held at the appellant’s housewith other accused wherein a decision was taken to kill the victim –Presence of PW-3 in appellant’s house while serving tea to all theaccused was proved by the evidence of PW-3 and PW-4 – Further,evidence of PW-3 and PW-4 proved the exchange of talk betweenthe accused confirming that they would kill victim and that the victimwas indeed killed five days after the meeting – The complicity of theappellant in conceiving a plan to kill victim was therefore duly provedwith the evidence adduced by the prosecution.

Dismissing the appeal, the Court

HELD: 1. In order to constitute a conspiracy, meeting ofmind of two or more persons to do an illegal act or an act byillegal means is a must. In other words, it is sine qua non forinvoking the plea of conspiracy against the accused. However, itis not necessary that all the conspirators must know each and

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Aevery detail of the conspiracy, which is being hatched and nor itis necessary to prove their active part/role in such meeting. Inother words, their presence and participation in such meetingalone is sufficient. It is well known that a criminal conspiracy isalways hatched in secrecy and is never an open affair to anyonemuch less to public at large. It is for this reason, its existenceBcoupled with the object for which it was hatched has to be gatheredon the basis of circumstantial evidence, such as conduct of theconspirators, the chain of circumstances leading to holding ofsuch meeting till the commission of offence by applying theprinciple applicable for appreciating the circumstantial evidenceCfor holding the accused guilty for commission of an offence. [Paras32-34] [788-G-H; 789-A-B]

2. Perusal of evidence of PW-3 and PW-4 would go to showthat PW-4 was running his small tea stall under a tree nearappellant’s house. It was around 70 feet away from the house andDone could see the appellant’s house from the tea stall. PW-3 wasworking as a tea boy in PW-4’s tea stall on daily wages during therelevant time. [Para 37] [789-F-G]

3. There is no good ground to discard the testimony ofPW-3 and PW-4. Their testimony is found natural, consistentEand does not suffer from any contradictions much less majorcontradictions so as to brush aside as being wholly unreliable.The two courts below, therefore rightly relied on their testimonyto sustain appellant’s conviction under Section 120-B, IPC. [Para40] [790-F-G]F4. The test laid down by this Court as to how a case under

F4. The test laid down by this Court as to how a case underSection 120-A, IPC read with Section 120-B, IPC is required tobe made out by the prosecution with the aid of evidence is foundproved by the prosecution beyond reasonable doubt in this caseand this is said for following reasons. First, there was adequatefoundation laid for holding a meeting by the accused and the saidGfoundation was an incident of pasting of posters in public placesall over the city and second, a public meeting in which victim-deceased uttered filthy language against the members of thecommunity to which the accused belonged. These two facts didconstitute a foundation for the commission of offence in questionHand they were duly proved with adequate evidence by the prosecution. Second, the evidence of PW-3 and PW-4 has provedthe factum of holding a meeting in appellant’s house with otheraccused wherein a decision was taken to kill/eliminate victimwithin 10 days. Third, the presence of PW-3 in appellant’s housewhile serving a tea to all the accused is proved by the evidenceof PW-3 and PW-4. Similarly the evidence of PW-3 and PW-4further proved the exchange of talk between the accusedconfirming that they will kill/eliminate victim, the fact that victimwas killed/eliminated five days after the meeting was held andlastly, his death was proved as homicidal. The complicity of theappellant in conceiving a plan to kill/eliminate victim was thereforeduly proved with the evidence adduced by the prosecution. [Paras41-45] [790-G-H; 791-A-E]

Lachman Singh v. StateAIR 1952 SC 167 : [1952] SCR 839;Major E.G. Barsay v. State of Bombay[1962] 2

SCR 195 – relied on.

Baldev Singh v. State of Punjab(2009) 6 SCC 564:[2009] 7 SCR 855 – referred to.

Case Law Reference

[1952] SCR 839 relied onPara 24[1962] 2 SCR 195relied onPara 31[2009] 7 SCR 855 relied onPara 34

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1305 of 2008.

From the Judgment and Order dated 08.11.2006 of the High Courtof Judicature at Madras in Criminal Appeal No. 1200 of 2003.

K. K. Mani, Ms. T.Archana, Advs. for the appellant.

M. Yogesh Kanna, S.Partha Sarathi, Raja Rajeshwaran S., Advs.for the respondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 08.11.2006 passed by theHigh Court of Madras in Criminal Appeal No.1200 of 2003 whereby theHigh Court dismissed the appeal filed by appellant herein.

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A2. In order to appreciate the issues involved in this appeal, it isnecessary to set out the facts of the case in detail hereinbelow.

3. The case of the prosecution may be briefly stated as follows.

4. In all nine persons were tried for commission of variousoffences in Session Trial No.239 of 2000 by the Additional Court ofBSessions (Fast Track No.111) Coimbatore.

5. The details of the offences under the Indian Penal Code (forshort “IPC”) for which the accused were tried are set out herein below:

(1) A - 1 to A- 9Section 120-B, IPC

C(2) A-1 to A- 5Section 148, IPC

(3) A- 1 to A- 5Section 302, IPC(4) A-1Section 332, IPC

6. On 19th August 1991, some posters were found pasted on theDwalls of public streets in the city of Coimbatore. These posters containedthreats that seven persons belonging to a particular community would bekilled. One person, out of the seven named person, was “Siva Kumar@ Siva”.

7. Siva on coming to know of his name being published in theEposter scolded in filthy language the members of a particular communityin a public meeting held on 30.08.1991, as according to him, the membersof that community had pasted such posters wherein he and six othersnamed therein were given threat of murder.

8. On 01.09.1991 between 2.30 p.m. to 3.30 p.m., all the nineFaccused (A-1 to A-9) assembled in the house of the appellant (A-6) andthey hatched a criminal conspiracy to murder Siva. In furtherance ofthe criminal conspiracy, on 05.09.1991, around 7.45 a.m. accused (A-1to A-5) along with one absconded accused armed with deadly weaponsassembled at Kovai Mill Road, Coimbatore and accused (A-1 and A-3)attacked Siva with knife, who was passing through the road. AccusedG(A-1) also stabbed one Constable Chinnathambi (PW-1) with knife, whohad come to the spot. Injured Siva was taken to the nearest hospitalwhere he succumbed to injuries and was declared dead.

9. This incident led to arrests of nine accused. Investigation wascarried out and after completing it, the charge-sheet was filed againstH

BILAL HAJAR @ ABDUL HAMEED v. STATE REP. BY THEINSPECTOR OF POLICE [ABHAY MANOHAR SAPRE, J.]

the nine accused and they were put to trial for commission of variousoffences as detailed above. By order dated 29.07.2003, the SessionsJudge convicted the accused persons as under:

“The punishment of life imprisonment to accused Nos.1to 9 under Section 120(b)(1) and a fine of Rs.10,00/- isimposed, failing which 1 year RI have to undergo. Foraccused Nos. 1 to 4, life imprisonment under Section 302of IPC and a fine of Rs.25,000/- as fine, failing which 1year RI under Sections 148 of IPC to accused Nos. 1 to 4should undergo the RI in the same period. Under Section428 of Criminal Procedure Code, the period of jail whilein the trail period may be deducted. Rs.1,00,000/- is to begiven to the ward of the Siva as compensation from thetotal fine of Rs.1,90,000/- under Section 357 of Cr.P.C.”

10. The convicted accused felt aggrieved and filed their respectivecriminal appeals, some jointly and some separately in the High Court ofMadras questioning therein the legality and correctness of their respectiveconvictions and sentences awarded to them.

11. By a common impugned order, the High Court dismissed theappeals of the accused, except that of accused (A-9) who was acquitted.The conviction of accused (A-2) under Section 120B was set aside.

12. The accused (A-6) alone felt aggrieved by his conviction andaward of sentences and he has filed the present appeal by way of specialleave to appeal in this Court. So far as other accused are concerned,they did not file any appeal in this Court against their respectiveconviction/sentences. Their conviction and sentences have, therefore,become final. They are undergoing their jail sentences as awarded toeach of them.

13. So the only question involved in this appeal is whether theCourts below were justified in holding the appellant (A-6) guilty forcommission of only the offence under Section 120-B IPC.

14. It is pertinent to mention here that so far as the appellant(A-6) is concerned, he was prosecuted and eventually convicted for anoffence punishable under Section 120-B, IPC and was accordinglyawarded life sentence. In other words, the appellant (A-6) was chargedwith the offence punishable under Section 120-B, IPC and was convictedas such.

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A15. Heard Mr. K.K. Mani, learned counsel for the appellant andMr. M. Yogesh Kanna, learned counsel for the respondent-State.

16. Learned counsel Mr. K.K. Mani appearing for the appellantwhile assailing the legality and correctness of the impugned ordercontended that the appellant’s conviction is based only on the testimonyBof two witnesses, namely PW-3 and PW-4.

17. According to learned counsel, these two witnesses are thechance witnesses set up by the prosecution and therefore the two Courtsbelow erred in placing reliance on their testimony. In his submission,both these witnesses should have been disbelieved.

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18. Learned counsel then elaborated his submission by readingtheir testimony and pointed out inconsistencies and contradictions in theirstatements on certain issues, which according to him, render theirstatement wholly unreliable.

19. It is basically these submissions the learned counsel urged byDappreciating their evidence and contended that so far as appellant (A-6)is concerned, once it is established that he was not a part of the criminalconspiracy to kill Siva on 05.09.1991, which according to the prosecutionwas hatched on 01.09.1991 in his house, the appellant was entitled for aclean acquittal.

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E20. It was urged that it is an admitted case set up by theprosecution which found proved also that the appellant was neither presentand nor involved in actual commission of crime on 05.09.1991 in killingSiva but it was accused (A-1 to A-5) who were involved in murder ofSiva on 05.09.1991. It is for this reason, the appellant cannot be heldFresponsible for commission of murder of Siva, he being not a member ofany criminal conspiracy to kill him.

21. In reply, learned counsel for the respondent (State), supportedthe impugned order, which, according to him, rightly upheld the order ofthe Session court and supported the reasoning and the conclusioncontained therein and contended that no case is made out to reverse theGconcurrent finding of the two courts below. It was urged that reasoningand the conclusion is based on proper appreciation of evidence and doesnot call for any interference in this appeal.

22. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no force in the submissions of theHlearned counsel for the appellant (A-6).

23. At the out set, we consider it apposite to state that when thetwo Courts below in their respective jurisdiction has appreciated theentire ocular evidence, then this Court would be very slow in exercise ofits appellate jurisdiction under Article 136 of the Constitution to appreciatethe evidence afresh unless the appellant is able to point out that theconcurrent finding of two courts below is wholly perverse or is recordedwithout any evidence or is recorded by misreading or ignoring the materialevidence.

24. We consider it apposite to recall the apt words of Justice FazalAli-a learned Judge while speaking for the Bench in the case of LachmanSingh vs. State (AIR 1952 SC 167 at page 169) when his Lordshipobserved “It is sufficient to say that it is not the function of thisCourt to reassess the evidence and an argument on a point of factwhich did not prevail with the Courts below cannot avail theappellants in this Court.”

25. Despite this, we felt that since the leave has been granted tothe appellant to file this appeal, it is just and proper to peruse the evidenceand particularly that of PW-3 and PW-4 with a view to find out as towhether the courts below were right in placing reliance on their testimonyto sustain the appellant’s conviction under Section 120-B, IPC.

26. Before we examine the evidence of PW-3 and PW-4, it isapposite to take note of the essential ingredients of Section 120 -A andSection 120-B, IPC under which the appellant (A-6) was prosecutedand eventually convicted.

27. The expression “criminal conspiracy” is defined in Section120-A, IPC. It says that when two or more persons agree or cause to bedone an illegal act or an act, which is not illegal by illegal means, such anagreement is designated a “criminal conspiracy”. It then provides anexception to the effect that no agreement except an agreement to commitan offence shall amount to a criminal conspiracy unless some act besidesthe agreement is done by one or more parties to such agreement inpursuance thereof. The explanation appended to the Section clarifiesthat it is immaterial whether the illegal act is the ultimate object of suchagreement or is merely incidental to that object.

28. Section 120-B, IPC provides a punishment for committing anoffence of criminal conspiracy. It says that whoever is a party to acriminal conspiracy to commit an offence punishable with death, A

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Aimprisonment for life, or rigorous imprisonment for a term of two yearsor upwards shall be punished in the same manner as if he had abettedsuch offence provided there is no express provision made in the Codefor punishment of such conspiracy.

29. Sub-section (2) of Section 120-B, IPC, however, provides thatBa person who is a party to a criminal conspiracy other than a criminalconspiracy to commit an offence punishable as aforesaid shall be punishedwith an imprisonment of either for a term not exceeding six months orwith fine or both.

30. Reading of Section 120-A and Section 120-B, IPC makes itCclear that an offence of “criminal conspiracy” is a separate and distinctoffence. Therefore, in order to constitute a criminal conspiracy and toattract its rigor, two factors must be present in the case on facts: first,involvement of more than one person and second, an agreement between/among such persons to do or causing to be done an illegal act or an actwhich is not illegal but is done or causing to be done by illegal means.D

31. The expression “criminal conspiracy” was aptly explained bythis Court in a case reported in Major E.G. Barsay vs. State of Bombay(1962) 2 SCR 195. Learned Judge Subba Rao (as His Lordship thenwas and later became CJI) speaking for the Bench in his distinctivestyle of writing said:E

“31…….. The gist of the offence is an agreement to breakthe law. The parties to such an agreement will be guilty ofcriminal conspiracy, though the illegal act agreed to bedone has not been done. So too, it is not an ingredient ofthe offence that all the parties should agree to do a singleFillegal act. It may comprise the commission of a numberof acts.”

32. Therefore, in order to constitute a conspiracy, meeting of mindof two or more persons to do an illegal act or an act by illegal means isa must. In other words, it is sine qua non for invoking the plea ofGconspiracy against the accused. However, it is not necessary that allthe conspirators must know each and every detail of the conspiracy,which is being hatched and nor it is necessary to prove their active part/role in such meeting.

33. In other words, their presence and participation in such meetingHalone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less topublic at large.

34. It is for this reason, its existence coupled with the object forwhich it was hatched has to be gathered on the basis of circumstantialevidence, such as conduct of the conspirators, the chain of circumstancesleading to holding of such meeting till the commission of offence byapplying the principle applicable for appreciating the circumstantialevidence for holding the accused guilty for commission of an offence.(See also Baldev Singh vs. State of Punjab [2009 (6) SCC 564].

35. Keeping in view the aforesaid principle of law which isconsistently followed and reiterated by this Court in several cases, theissue involved in this case is required to be examined with a view to findout as to whether appellant (A-6) was a member of a criminal conspiracywhich was hatched on 01.09.1991 to kill Siva on 05.09.1991 or in otherwords whether there is any evidence to sustain appellant’s convictionunder Section 120-B, IPC and, if so, whether the evidence adduced bythe prosecution is in conformity with the parameters laid down by thisCourt to prove the guilt of the appellant beyond reasonable doubt.

36. It has come in evidence that starting point of the incident leadingto the death of Siva gained momentum due to pasting of posters onpublic walls in the city by the members of one community mentioningtherein the name of “Siva” with six others that these seven named personswould be killed. This prima facie indicated that Siva and six others couldbe a soft target for their elimination by the members of a particularcommunity in coming days. Another factor, which added to the occurrencein question was filthy langauge/utterances of Siva in one public meetingheld by some workers of one party soon thereafter on 30.08.1991.

37. Perusal of evidence of PW-3 and PW-4 would go to showthat PW-4 was running his small tea stall under a tree near appellant’shouse. It was around 70 feet away from the house and one could seethe appellant’s house from the tea stall. PW-3 was working as a tea boyin PW-4’s tea stall on daily wages during the relevant time.

38. PW-3 said in his deposition that on 01.09.1991 around 2.30p.m., he saw appellant (A-6), Basha (A-8) and Sbeyar (A-9) gettingdown from the car (van) and entering in appellant’s house. After sometime, (A-8-Basha) came to the tea stall and asked him (PW-3) to bring10 cups of tea to the appellant’s house. PW-3 on his part then told AB

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APW-4 to prepare and give him 10 cups of tea, which PW-3 brought tothe appellant’s house and served everyone sitting in the room. He thenwaited for some time to collect the empty teacups when he heard appellant(A-6) saying to others present there that: “whatever might be the cost,we should kill Siva within 10 days”. He said that on appellant sayingthis, another person-Basha (A-8) who had come to the tea stall forBordering tea said “in no case we should go back after taking theinitial step and finishing Siva”. On this A-7 (Subahier) said touchingA-1 (Jahir Husain) sitting next to him that he i.e. (A-1) would be thefittest one to do the job. At this time, (A-8 Basha) saw PW-3 who wasstanding there and asked him as to why he (PW-3) is standing here andCasked him to go out of the room. When PW-3 was leaving the place, heheard the appellant asking others as to whether they would murder Siva.All in reply to appellant’s query said in a loud voice, as if, they weretaking some kind of oath that they would kill Siva. PW-3 then said thaton return to tea stall, he told to his boss (PW-4) what he saw and heard

in appellant’s house to which (PW-4) said to him that he should ignore.DPW-4 then asked him to go back after some time to collect the emptycups and bring sale money for 10 cups of tea. PW-3 then went to theappellant’s house after ten to fifteen minutes when the persons assembledthere paid him Rs.8 and said to retain the balance by way of tip for him.He then said that after about 4/5 days or so, he heard that Siva is murderedEby stab injuries so he went to see him in Government hospital.

39. More or less on the same lines of (PW-3), PW-4 has alsodeposed about the incident in his deposition. In other words, PW-4 hascorroborated the testimony of PW-3 on all material events and hencewe do not wish to repeat his deposition in detail.F40. Having scanned the testimony of PW-3 and PW-4, we find no F40. Having scanned the testimony of PW-3 and PW-4, we find nogood ground to discard their testimony. In our opinion, their testimony isfound natural, consistent and does not suffer from any contradictionsmuch less major contradictions so as to brush aside as being whollyunreliable. The two courts below, in our view, therefore rightly relied ontheir testimony to sustain appellant’s conviction under Section 120-B,GIPC.

41. In our considered opinion, the test laid down by this Court asto how a case under Section 120-A, IPC read with Section 120-B, IPCis required to be made out by the prosecution with the aid of evidence isfound proved by the prosecution beyond reasonable doubt in this caseHand this we say for following reasons.

42. First, there was adequate foundation laid for holding a meetingon 01.09.1991 by the accused and the said foundation was an incident ofpasting of posters on 19.08.1991 in public places all over the city andsecond, a public meeting held on 30.08.1991 in which Siva (deceased)uttered filthy language against the members of the community to whichthe accused belonged. These two facts did constitute a foundation forthe commission of offence in question and they were duly proved withadequate evidence by the prosecution.

43. Second, the evidence of PW-3 and PW-4 has proved thefactum of holding a meeting in appellant’s house on 01.09.1991 withother accused wherein a decision was taken to kill/eliminate Siva within10 days.

44. Third, the presence of PW-3 in appellant’s house while servinga tea to all the accused is proved by the evidence of PW-3 and PW-4.Similarly the evidence of PW-3 and PW-4 further proved the exchangeof talk between the accused confirming that they will kill/eliminate Siva,the fact that Siva was killed/eliminated after five days after the meetingwas held and lastly, his death was proved as homicidal

45. In our considered opinion, the complicity of the appellant inconceiving a plan to kill/eliminate Siva was therefore duly proved withthe evidence adduced by the prosecution. Indeed, it was the appellantwho took the lead to kill/eliminate Siva and with that end in view first heheld a meeting in his house with all the other accused on 01.09.1991 andpursuant thereto got it accomplished through accused (A-1 to A-5) on05.09.1991 when accused (A-1 & A-3) caused fatal stab injury withknife to Siva resulting in his homicidal death.

46. In our opinion, it was not necessary for the appellant to remainpresent at the time of actual commission of the offence on 05.09.1991with accused (A-1 to A-5) for killing/eliminating Siva. The appellantcould be held guilty for commission of the same offence and sentence,which was awarded to accused (A-1 to A-5) as if, he had abetted thecommission of the offence of murder as provided under Section120-B, IPC.

47. We are not impressed by the submission of the learned counselfor the appellant (A-6) when he tried to point out three statements fromthe evidence of PW-3 and PW-4 which according to him werecontradictory to each other rendering their testimony unreliable.

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A48. The first one was that PW-3 said that “he alone” went to thehospital to see the dead body of Siva whereas PW-4 said that “We”went to the hospital to see the dead body of Siva.

49. In our opinion, there is no contradiction in their version on theissue of visit to the hospital. Whether both went together or wentBindividually with some time gap between their visits is hardly of anysignificance so as to discard their entire testimony.

50. The second instance which was pointed out by the learnedcounsel for the appellant was that why should PW-3 go to see the deadbody of Siva in the hospital when he was in no way connected with himCand nor was he connected with the accused. This fact according tolearned counsel appears unnatural and thus renders PW-3 testimonyunreliable.

51. In our view, the second instance also has no substance. It isfor the reason that the appellant (A- 6) had an opportunity to cross-Dexamine PW-3 and PW-4 on all the so-called contradictions to the twowitnesses but he failed to avail of this opportunity by not cross-examiningPW-3 and PW-4. On the other hand, the appellant adopted the crossexamination done by other accused on PW-3 and PW-4 and gave up hisright of cross-examination to these two witnesses. In this view of thematter; he cannot now be permitted to find fault in the evidence of PW-E3 and PW-4 and rely upon some contradictions which otherwise do notshow any contradiction much less major one affecting their testimony.

52. In any event, the second instance even otherwise has nosubstance for the simple reason that PW-3 and PW-4 were the onlypersons who were aware of the meeting held on 01.09.1991 at theFappellant’s house where PW-3 had heard the plan for elimination of Sivaand on his return from appellant’s house, he told to PW-4 of the saidincident. In these circumstances and with this background, if PW-3 wentto the hospital, which was very near to the tea stall, there is nothingunnatural in his visit.

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53. Yet, another last circumstance pointed out by the learnedcounsel for the appellant was that PW-3 joined the services of PW-4 on01.05.1991 and left within five days. This according to learned counselshows that he was a chance witness. We do not agree.

54. PW-3 was working as a daily wager on payment of Rs.7/-Hper day with PW-4. In these circumstances, if PW-3 worked for one BILAL HAJAR @ ABDUL HAMEED v. STATE REP. BY THEINSPECTOR OF POLICE [ABHAY MANOHAR SAPRE, J.]

week or so and discontinued thereafter would not mean that he did notwork at all with PW-4. After all, this was not an appointment in somesystematic organization but was with one individual in his tea stall runningunder a tree. There is, therefore, nothing by which one could concludethat PW-3 did not work at all with PW-4 during those five days. Theremight be myriad reasons for PW-3 to leave this job. It is more so whenit was proved that PW-4 was running his teashop on that spot for quite along time and therefore was conversant with the locality and passersby.

55. It is also not the case of appellant that PW-3 had any previousenmity with any of the accused and with that end in view, he stepped inwitness box to speak against them. PW-3 was a young boy aged around17 years with no criminal background. As mentioned above, all this couldbe put to PW-3 and PW-4 in their cross examination by the appellant buthe did not choose to do so and gave up his right to cross examine thesewitnesses.

56. In the light of detailed foregoing discussion, we are of theconsidered opinion that the prosecution was able to prove beyond allreasonable doubt with the aid of evidence that the appellant (A-6) wasone of the active members of the criminal conspiracy along with otheraccused and hatched the plan in his house in the meeting which washeld on 01.09.1991 to kill/eliminate Siva and in furtherance thereof accused(A-1 to A-5) successfully killed/eliminated Siva on 05.09.1991 by causingSiva stab injuries with the aid of knife resulting in his homicidal death.The appellant’s conviction and award of life sentence as prescribed underSection 302 read with Section 120-B, IPC was, therefore, rightly heldmade out along with other accused persons by the two courts below.We, therefore, concur with their view and accordingly uphold it.

57. We may only mention that it was not the case of the appellantand nor was urged also that his case falls under Section 120-B (2), IPCand therefore he be awarded less sentence as prescribed therein.

58. In view of the foregoing discussion, we find no merit in thisappeal. The appeal thus fails and is accordingly dismissed.

Ankit Gyan Appeal dismissed.

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