# State of U.P v. Salim

- **Citation:** (2021) 11 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-29
- **Case number:** Government Appeal No. 31 of 2020
- **Bench:** Suneet Kumar, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-salim-46466
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) - Indian Penal Code,
1860-Sections
302,
120-B-challenge
toacquittal-accused was not named in the FIR,
his name surfaced later during investigationTestimony of PW2 cannot be relied as a person
cannot be visible from a distance of 100
meters-PW-5 & PW-6 were declared hostileingredients of the offence of section 120-B IPC
is not made out as no credible or circumstantial
evidence has been proved-no evidence to show
that the accused had in any manner agreed,
aided or conspired in execution of the offencefinding of trial court is just and proper.(Para 1
to 14)
B. In order to constitute conspiracy, meeting of
mind of two or more persons to do an illegal
act or an act by illegal means is a must. in
other words, their presence and participation in
such meeting alone is sufficient. (Para 9 to 11)
The appeal is dismissed. (E-6)

List of Cases cited:

## Text

11 All. State of U.P. Vs. Salim
171
regard thereto can be formed at this stage while
addressing the prayer to reject the election
petition under Order VII Rule 11 CPC. I am
therefore of the considered view that the prayer
to reject the election petition under Order VII
Rule 11 CPC is liable to be rejected.

16. Accordingly, the application under
Order VII Rule 11 CPC is dismissed. Let the
matter be listed on 24.11.2021 for framing of
issues.
----------
(2021)11ILR A171
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Government Appeal No. 31 of 2020

State of U.P. ...Appellant
Versus
Salim ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) - Indian Penal Code,
1860-Sections
302,
120-B-challenge
toacquittal-accused was not named in the FIR,
his name surfaced later during investigationTestimony of PW2 cannot be relied as a person
cannot be visible from a distance of 100
meters-PW-5 & PW-6 were declared hostileingredients of the offence of section 120-B IPC
is not made out as no credible or circumstantial
evidence has been proved-no evidence to show
that the accused had in any manner agreed,
aided or conspired in execution of the offencefinding of trial court is just and proper.(Para 1
to 14)
B. In order to constitute conspiracy, meeting of
mind of two or more persons to do an illegal
act or an act by illegal means is a must. in
other words, their presence and participation in
such meeting alone is sufficient. (Para 9 to 11)
The appeal is dismissed. (E-6)

List of Cases cited:

1. Bilal Hajar @ Abdul Hameed Vs. St.(2019) 17 SCC
451
2. Major E.G. Barsay Vs St. of Bom.(1962) 2 SCR 195

3. Baldev Singh Vs. St. of Punj.(2009) 6 SCC 564

4. Sharad Birdhichand Sarda Vs. St. of Mah.(1984) 4
SCC 116

5. Shivaji Sahabrao Bobade Vs. St. of Mah.(1973) 2
SCC 793

(Delivered by Hon'ble Suneet Kumar, J.
&
Hon'ble Brij Raj Singh, J.)

1. Heard learned A.G.A. and perused the
lower court record.

2. The instant appeal is directed against the
judgment and order dated 28.09.2019, passed by
the Additional Sessions Judge, Court No. 5,
Bulandshahar in Sessions Trial No. 339 of 1996
(State vs. Salim), acquitting the accused
respondent, under Sections 302, 120B IPC,
Police
Station
Sikandrabad,
District
Bulandshahar.

3. The facts and circumstances giving rise
to the instant appeal is that on 23..05.1995 at
about 10:00 A.M. accused Mohd. Ragib and
Irfan came to the shop and quarreled with Muzib
Urrehman, uncle of the informant, Irfan Ahmad,
over outstanding dues. In the evening at about
7:00 P.M. uncle of the informant and informant
after closing the shop, while returning home,
were intercepted by Mohd. Ragib, Irfan and
Rizwan. Accused Irfan stabbed uncle (Muzib
Urrehman) while Rizwan was holding his hand.
172 INDIAN LAW REPORTS ALLAHABAD SERIES
A report came to be lodged by informant Irfan
Ahmad under Section 307 IPC at about 19:50
hours.
The
deceased
Muzib
Urrehman
succumbed to the injury. After investigation, a
report (charge sheet) came to be filed under
Section 302, 120B and 114 IPC. Accused Rakib
and Rizwan died during trial in 1999 and 1996
respectively, accordingly, trial abated against
them. Accused Irfan on the date of incident was
aged about 16 years, consequently, matter was
referred to the Juvenile Justice Board on
15.09.1997. Accused Salim was summoned to
face the trial. Charge under Section 302 read
with 120B IPC was framed against him. He
denied the charge and sought trial. Accused was
not named in the F.I.R., his name surfaced
during trial as being conspirator to the crime.
The prosecution to prove the charge examined
PW-1 Irfan Ahmad, PW-2 Ibrahim, PW-3 Dr.
Rajiv Kumar Gupta, PW-4 Dr. S. Kant Sharma,
PW-5 Sarfaraz, PW-6 Rais Ahmad, PW-7
Retired Deputy Inspector Trilok Chand and PW8 Police Inspector Jaswant Singh.

4. After the evidence of prosecution,
accused recorded statement under Section 313
Cr.P.C. denying the charge. He further stated
that he has been falsely implicated due to party
bandi. Primarily the allegation against the
accused respondent is that of conspirator,
conspiring with the other accused in commission
of the offence.

5. Irfan Ahmad, (PW-1) in cross
examination stated that he had not seen accused
Salim on the spot but he was subsequently
informed that he was waiting in a Maruti vehicle
about 100 meter from the place of incident. PW2 claiming to be eye-witness stated that incident
occurred 60-70 yards from the crossing where
vehicle was parked. He stated that after
commission of the offence, the accused fled
towards the crossing where accused Salim was
standing
outside
the
vehicle.
In
cross
examination, he, however, stated that he had
seen accused Salim sitting in the vehicle.
Sarfaraz (PW.-5) stated that about 7:00 P.M. he
was in the market where he met Rais Ahmad
(PW-6) who had come to purchase milk and
they entered into a conversation. He further
stated that vehicle was standing and accused
Salim was sitting in the vehicle. In contradiction
to the statement of PW-5, PW-6 stated that he
had not gone to the market on the date of
incident to purchase milk and accused Salim is
not known to him. As per site plan (Ex.-4), place
of incident is approximately 100 meters away
from where the vehicle was parked at the
crossing. As per statement of Ibrahim (PW-2),
after the incident of stabbing accused fled
towards the vehicle which was standing 60-70
yards from the place of the incident, he followed
the accused 10-5 steps, thereafter, stopped. It is
then he saw accused Salim standing outside the
vehicle. In contradiction to the statement of PW2, Sarfaraz (PW-5) who was in the market on the
date of incident stated that he saw Salim sitting
in the vehicle. Testimony of PW-2 was not
relied upon being contrary and improbable as a
person cannot be visible or identified from a
distance. As per the site plan, distance of market
from place of incident is 100 meters. PW-5 &
PW-6 were declared hostile. Presence of the
accused at the place of occurrence has not been
proved beyond reasonable doubt.

6. Taking the case of prosecution that
accused was present at the vehicle, ingredients
of the offence of Section 120-B IPC is not made
out as no credible or circumstantial evidence has
been proved or shown by the prosecution to link
the accused in conspiring with the other accused
in commission of the offence. There is no
evidence direct or circumstantial to show that
the accused had in any manner agreed, aided or
conspired in execution of the offence. The mere
presence of the accused at a distance of 100
yards, and the accused running towards the
vehicle after commission of the crime is not
sufficient to bring home the charge of
11 All. State of U.P. Vs. Salim
173
conspiracy beyond reasonable doubt against the
accused-respondent.
The
presence
of
the
accused was not proved, he was not named in
the F.I.R., his name surfaced later during
investigation.

7. Supreme Court in Bilal Hajar alias
Abdul Hameed v. State1, considered the factors
that must be present to constitute an offence
under Section 120B IPC :

"30. Reading of Section 120A and
Section 120B, IPC makes it clear that an
offence of "criminal conspiracy" is a separate
and distinct offence. Therefore, in order to
constitute a criminal conspiracy and to attract
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 act which is not
illegal but is done or causing to be done by
illegal means.

8. The expression "criminal conspiracy"
was aptly explained by this Court in a case
reported in Major E.G. Barsay vs. State of
Bombay2. Learned Judge Subba Rao (as His
Lordship then was and later became CJI)
speaking for the Bench in his distinctive style of
writing said:

"31........ The gist of the offence is an
agreement to break the law. The parties to such
an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be
done has not been done. So too, it is not an
ingredient of the offence that all the parties
should agree to do a single illegal act. It may
comprise the commission of a number of acts."

9. Therefore, in order to constitute a
conspiracy, meeting of mind of two or more
persons to do an illegal act or an act by illegal
means is a must. In other words, it is sine qua
non for invoking the plea of conspiracy against
the accused. However, it is not necessary that all
the 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.

10. In other words, their presence and
participation in such meeting alone 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 to public at large.

11. It is for this reason, its existence
coupled with the object for which it was hatched
has to be gathered on the basis of circumstantial
evidence, such as conduct of the conspirators,
the chain of circumstances leading to holding of
such meeting till the commission of offence by
applying
the
principle
applicable
for
appreciating the circumstantial evidence for
holding the accused guilty for commission of an
offence. (See also Baldev Singh vs. State of
Punjab3.

12. Supreme Court in a decision rendered
in Sharad Birdhichand Sarda Vs. State of
Maharashtra4 held as follows:

"A close analysis of this decision
would show that the following conditions must
be fulfilled before a case against an accused can
be said to be fully established:

(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.

It may be noted here that this Court
indicated that the circumstances concerned
"must or should" and not "may be" established.
There is not only a grammatical but a legal
distinction between "may be proved" and "must
be or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State of
Maharashtra5 where the observations were
made:
174 INDIAN LAW REPORTS ALLAHABAD SERIES

"Certainly, it is a primary principle
that the accused must be and not merely may be
guilty before a court can convict and the mental
distance between ''may be' and ''must be' is long
and divides vague conjectures from sure
conclusions."

(2) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,

(3) the circumstances should be of a
conclusive nature and tendency,

(4) they should exclude every possible
hypothesis except the one to be proved, and

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that in
all human probability the act must have been
done by the accused."

13.

Considering
the
inconsistency,
improvement, contradiction and also the fact that
essential ingredients to constitute the offence
charged against the accused is not found to be
proved beyond reasonable doubt, we are of the
view that the view taken by the trial court is a
possible view.

14. In view thereof, application (Leave to
Appeal) is rejected. Consequently, government
appeal is also dismissed.
----------
(2021)11ILR A174
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Government Appeal No. 149 of 2020
State of U.P. ...Appellant
Versus
Sachin ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) & Indian Penal Code,
1860-Sections 376, 452-challenge to-acquittalstatement of prosecutrix is self contradictoryPW4 doctor found no injury on the private part
of the prosecutrix-as per pathological report,
no spermatozoa was found-hair and piece of
nail
of
prosecutrix
was
sent
for
DNA
examination, but no such DNA-test-report was
produced-accused was handicapped by one leg,
while prosecution version states that on
making hue and cry by prosecutrix, accused
fled away by jumping the wall of her housefindings recorded by court below is absolutely
just
and
proper-no
illegality
has
been
committed by court-below.(Para 1 to 20)

B. It is a settled legal position that in acquittal
appeal, the appellate court is not required to
rewrite
the
judgment
or
to
give
fresh
reasoning, when the reasons assigned by the
court below are found to be just and proper.
(Para 14)

The appeal is dismissed. (E-6)

List of Cases cited:

1. M. S. Narayana Menon @ Mani Vs. St. of Ker. &
anr.,(2006) 6 SCC 39

2. Chandrappa Vs. St. of Kan. (2007) 4 SCC 415

3. St. of Goa Vs. Sanjay Thakran & anr. (2007 ) 3 SCC
75

4. St. of U.P. Vs. Ram Veer Singh & ors. (2007) AIR
SCW 5553

5. Girja Prasad (Dead) By LRs Vs St. of MP (2007) AIR
SCW 5589