# Udai Bhan (In Jail) v. State of U.P

- **Citation:** (2020) 11 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-15
- **Case number:** Criminal Appeal No. 3658 of 2002
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-bhan-in-jail-v-state-of-u-p-45424
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 147, 148, 302/149 - Criminal
appeals have been filed against the
conviction under

Criminal Conspiracy
Offence of criminal conspiracy is agreement
between two or more persons to do an illegal
act. (Para 40)

There are neither any circumstantial evidence
nor any prior meeting of mind of accused
proved, nor any action individual or in concert,
proved against the appellant.

Conviction and sentence of the appellant by the
trial court set aside. (Para44)

Appeal Allowed. (E-2)

List of Cases cited:-

## Text

_Characters 0–39,955 of 46,635. This is a partial read: ask again with offset=39955 for what follows._

11 All. Udai Bhan Vs. State of U.P.
489
beyond all reasonable doubt against the
present appellant- Ram Khilari and the
testimony of the prosecution witnesses -
both fact and formal is consistent and
clinching and inspires confidence. The trial
court took correct view of the entire
occurrence and has properly scrutinized,
appraised and analyzed facts and law in
right perspective.

30. It is established principles of
criminal jurisprudence that the prosecution
is required to prove its case beyond all
reasonable doubt and the burden of proof to
establish the charge is always on the
prosecution and in this case the prosecution
has successfully prove the charges against
the appellant beyond all reasonable doubt
and the appellant was rightly convicted
under aforesaid charges and was sentenced
condignly.

31. Accordingly, the judgment and
order
dated
09.07.2012
passed
by
Additional Sessions Judge, Court No. 6,
Aligarh, in Session Trial No.450 of 2006,
arising out of Case Crime No.126 of 2004
(State vs. Ram Khilari and another), under
Sections - 307, 504, 506 I.P.C. and 3(2)(v)
of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989,
is hereby upheld. Consequently, the instant
appeal lacks merit and the same is
dismissed.

32. In this case, the appellant is in jail,
he shall serve out the sentence as awarded
by the trial court.

33. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2020)11ILR A489
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 3658 of 2002
connected with
Criminal Appeal No. 3917 of 2002
connected with
Criminal Appeal No. 3960 of 2002

Udai Bhan ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri K.D. Tiwari, Sri Sunil Kumar, Sri Sunil
Singh, Sri Vikas Sharma Amicus

Counsel for the Opposite Party:
A.G.A., Sri Sanjay Tripathi

Criminal Law - Indian Penal Code,1860 -
Sections 147, 148, 302/149 - Criminal
appeals have been filed against the
conviction under

Criminal Conspiracy
Offence of criminal conspiracy is agreement
between two or more persons to do an illegal
act. (Para 40)

There are neither any circumstantial evidence
nor any prior meeting of mind of accused
proved, nor any action individual or in concert,
proved against the appellant.

Conviction and sentence of the appellant by the
trial court set aside. (Para44)

Appeal Allowed. (E-2)

List of Cases cited:-

1. John Pandian Vs State represented by
Inspector of Police,Tamil Nadu, reported in
(2010) 14 SCC 129
490 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Baliya @ Bal Kishan Vs St. of M.P., reported
in (2012) 9 SCC 696,

3. State (Government of NCT of Delhi Vs Nitin
Gunwan Shah, reported in (2016) 1 SCC 472

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeals have
been preferred against the judgment and
order dated 5.9.2002 passed by 1st
Additional Sessions Judge, Mahoba in
S.T. No.16 of 2001 (Case Crime No.220
of 2000), Police Station Ajnar, District
Mahoba convicting and sentencing the
appellants, namely, Hukum Singh and
Kalyan Singh under Section 147 I.P.C.
for one year R.I., under Section 148
I.P.C. for two years R.I.and under Section
302/149 I.P.C. for life imprisonment and
fine of Rs.2000/- each and in default of
payment of fine, six months additional
imprisonment to each of the appellants,
wheres appellant, namely, Udai Bhan has
been convicted and sentenced for life
imprisonment under Section 302/120-B
I.P.C. and fine of Rs.2,000/- and in
default of payment of fine, six months
simple imprisonment.

2. The accused, namely, Hukum
Singh and Kalyan Singh who have
preferred Crl. Appeal Nos. 3917 of 2002
& 3960 of 2002 have died during the
pendency of their appeals and their
appeals have already been ordered to be
abated by this Court vide orders dated
9.9.2020 14.11.2018 respectively, hence,
the Court proceeds to hear the criminal
appeal filed by the appellant Udai Bhan
being Crl. Appeal No.3658 of 2002
against whom the only charge is for
conspiring the murder of the deceased
along with the two accused Hukum Singh
and Kalyan Singh.

3. The prosecution case, as has been
set out in the F.I.R. by the informant Sohan
Lal, is that the house of the informant is at
a distance of 150 yards from the house of
his
cousin
brother,
namely,
Jagat
Singh.There was some dispute between
Jagat Singh and one Hukum Singh and
others of his village with respect to land, on
account of which in the night of 25.10.2020
accused Hukum Singh, Kalyan Singh along
with 2-3 unknown persons entered in the
house of of his cousin brother Jagat Singh
with lathi, farsa, axe and country-made
pistol and assaulted them. On hearing the
alarm being raised by his cousin brother
Jagat Singh, his wife Mannu and daughter
Km. Anita for rescue, the informant Sohan
Lal, Jai Hind, Prithvi Raj, Sughar Singh,
Basanta and other persons of the village
reached at the place of occurrence in the
night at about 1:30 a..m. and they in the
torch light saw the accused, namely,
Hukum Singh, Kalyan Singh and 2-3
unknown persons along with them who
were indulged in marpeet and were uttering
that if any person would come in between,
would be dealt in the same manner. The
accused have killed his brother Jagat Singh,
his wife Smt. Mannu and daughter Km.
Anita with lathi, farsa and fled away
towards the village. While the accused
were fleeing from the place of occurrence,
the informant and others had seen the
accused Hukum Singh and Kalyan Singh
with 2-3 unknown persons and identified
them and further the unknown person could
be identified by them if they were brought
before
them.The
incident
has
been
conspired by the by the brother of Hukum
Singh, namely, Udai Bhan. When the
informant and others reached on the spot,
they saw the dead body of Jagat Singh
lying in the courtyard of his house and that
of his wife Smt. Mannu on the roof of the
house, whereas the dead body of his
11 All. Udai Bhan Vs. State of U.P.
491
daughter Km. Anita was lying on the way
towards the west side near the house of one
Bal Kishan.

4. The F.I.R. of the incident was
lodged on the basis of written report
submitted by the informant Sohan Lal
against the accused persons, namely,
Hukum Singh, Kalyan Singh, Udai Bhan
and 2-3 unknown persons on 25.10.2000 at
6.30 a.m. at Police Station Ajnar, District
Mahoba being Case Crime No.220 of 2000,
under Sections 147, 148, 302, 149 & 120B
I.P.C.

5. The investigation of the case was
entrusted to the Station Officer, namely,
Surendra Singh, who after conclusion of
the investigation, submitted charge sheet
against the three accused persons, namely,
Hukum Singh, Kalyan Singh and Udai
Bhan.

6. The case was committed to the
Court of Sessions and charges were framed
against the accused for the offence under
Sections 147, 148, 302/149 & 120B I.P.C.
by the trial Court.

7. The accused were put to trial. The
accused denied the charges and claimed
their trial.

8. The prosecution in support of its
case has examined PW1-Sohan Lal, PW2Prithvi Raj, PW3-Basanta, PW-4 Dr. T.R.
Sarsaiya,
PW5-Head
Constable
Daya
Shankar Tiwari, PW6-S.I.Surendra Singh
and PW7-Jai Hind

9. PW1-Sohan Lal has deposed before
the trial Court reiterating the prosecution
case, as has been stated by him in the F.I.R.
He proved the written report Ext.Ka.1 to be
in his hand writing and signature. He stated
that he reached at the place of occurrence
on the alarm raised by the deceased Mannu
and had seen the accused Hukum Singh and
Kalyan, who were armed with axe, coming
out from the house of deceased Jagat Singh
along with 2-3 unknown persons.The
unknown persons were armed with farsa,
country-made pistol and lathi. He saw the
incident in the torch light and identified the
accused. This witness further deposed that
along with him Prithvi Raj, Jai Hind and
Basanta were also present. The accused had
also
threatened
them
for
dire
consequence.The deceased Jagat Singh
wanted to give his landed property to his
daughter Km. Anita whose marriage he had
fixed in Village Lamhora. Prior to the
incident, there was a quarrel between the
deceased Jagat Singh and accused Hukum
Singh and Kalyan Singh with respect to
giving of his landed property to his
daughter Km. Anita, for which a report was
also lodged by the deceased Jagat Singh. In
the murder of the three deceased, there was
a conspiracy of Kalyan Singh, Hukum
Singh and Udai Bhan.

10. In his evidence, this witness
further deposed that the accused Udai Bhan
was also present at the time of incident, but
in his cross-examination he denied the
presence of the accused Udai Bhan and has
only deposed that he conspired along with
other accused persons for murdering the
deceased Jagat Singh and his family.

11. PW2-Prithvi Raj who is also an
eye witness of the occurrence, has deposed
before the trial Court that he too reached at
the place of occurrence on hearing the fire
shot and on the alarm raised by Smt.
Mannu for rescue. He saw the accused
Hukum Singh, Kalyan Singh and three
unknown persons coming out from the
house of the deceased Jagat Singh. He had
492 INDIAN LAW REPORTS ALLAHABAD SERIES
also seen the accused and identified them in
the torch light. After the accused had gone
away, he visited the house of Jagat Singh
and saw that that the doors of the house
was broken and the dead body of the
deceased Jagat Singh was lying in the
courtyard of the house, that of Smt. Mannu
on the roof whereas the dead body of his
daughter Km. Anita was lying on the way
near the house of one Bal Kishan.

12. This witness further deposed that
more than one month or so prior to the
present incident at about 9 hrs. during day
time he heard from the courtyard of his
house which is adjacent to the side of
pathway accused Udai Bhan, Hukum Singh
and Kalyan Singh talking to each other that
they be killed otherwise the entire property
of Jagat Singh would be taken by the inlaws of Km. Anita and when the said
conversation was going on, at that time
accused Udai Bhan had come to the village.
All the three accused have conspired the
murder of the three deceased.This witness
is also the witness of panchayatnama of the
three
deceased
and
on
the
inquest
report/panchayatnama he had also signed.
This witness is also the witness of certain
recoveries such as blood stained lathi,
which he had signed and proved as paper
no.9 Ka-1 and further the police had
recovered the three empty cartridges and
prepared fard recovery memo as paper
no.9Ka-2 and in his presence blood stained
earth and plain earth were recovered and
sealed in different boxes, which has been
marked as paper no.9ka-3, 9Ka-4 & 9Ka-5
and also signed the same.

13. This witness further stated that
after 6-7 days of the incident, accused,
namely, Kalyan Singh was arrested by the
police and on his pointing out the weapon
of assault, i.e., axe was recovered in his
presence behind the house from the bushes
of Besharm plant, which was blood stained
and the said recovery was marked as paper
no.17Ka-1.

14. PW3-Basanta who is also an eye
witness of the occurrence, has deposed
before the trial Court that he is brother-inlaw (Sala ) of the deceased Jagat Singh and
on the day of the incident he had come to
the house of deceased Jagat Singh. On the
night of the incident he was sleeping at the
flour mill of Prithvi Raj and at about 1:30
a.m. in the night he heard the alarm of his
sister Mannu from the house of the
deceased Jagat Singh for rescue, he reached
on the spot and in the torch light he saw
that accused Hukum Singh and Kalyan
Singh were assaulting his sister Mannu
with axe on the roof of the house of
deceased Jagat Singh and thereafter he saw
both the accused who were armed with axe
in their hands and three unknown persons
who were armed with countrymade pistol,
farsa and lathi coming out from the house
of deceased Jagat Singh. He further
deposed that the murder of the three
deceased was pre-planned/ conspired by the
accused Udai Bhan. The murder of Km.
Anita was committed at the door of one Bal
Kishan and of Jagat Singh in the courtyard
of his house.

15. PW7-Jai Hind who is also an eye
witness of the occurrence examined by the
trial
Court,
has
stated
that
in
the
intervening night of 24/25.10.2000 at about
1:30 a.m. on hearing noise of fire shot and
alarm raised, he reached at the house of
Jagat Singh where he saw that the accused
Hukum Singh, Kalyan Singh and three
unknown persons were coming out of the
house of Jagat Singh. Accused Hukum
Singh and Kalyan Singh were armed with
axe, whereas three unknown persons were
11 All. Udai Bhan Vs. State of U.P.
493
armed with country-made pistols. The dead
body of Km. Anita was lying in the lane at
the door of the house of one Bal Kishan
and that of Jagat Singh in the courtyard
whereas Smt. Mannu was at the roof of the
house of Jagat Singh. He saw the accused
in the torch light and identified them.
Besides him, the incident was witnessed by
Prithvi Raj, Sughar Singh, Sohan Singh,
Basanta and others.

16. This witness further deposed that
the accused Udai Bhan one month prior to
the incident had come to the Village
Mavaiya from Lucknow and he heard the
accused Udai Bhan, Hukum Singh and
Kalyan Singh talking together that the
marriage of Km. Anita may not be
solemnized and prior to it all the three
persons be murdered, so that the property
would come to them (accused). He heard
the said conversation of the accused from
the door of the house which was in lane and
at the time of witnessing the incident he
had a torch which he had given in the
supurdagi of the Investigating Officer and
fard recovery/supurdaginame has also been
prepared as paper No.31 Ka which he had
signed and proved as material Ext. 14.

17. PW4-Dr. T.R.Sarsaiya in his
examination before the trial Court has stated
that he conducted the post mortem of the
three deceased, namely, Jagat Singh, Smt.
Mannu wife of Jagat Singh & Km. Anita
daughter of Jagat Singh in the District
Hospital, Mahoba on 26.10.2000 at 12:00
Noon, 1:00 p.m. and 2:00 p.m. respectively
and in the opinion of the doctor all the three
deceased died on account of ante mortem
injuries
which
were
found
on
their
person.This witness has proved the post
mortem report as Ext. Ka3, Ka.4 & Ka.5
respectively. He further stated that the three
deceased died on 25.10.2000 at 1:30 a.m. in
the night.

18.

PW5-Head
Constable
Daya
Shankar Tiwari has deposed before the trial
Court that he was posted as Head Constable
on 25.10.200 at Police Station Ajnar. On the
said date, on the basis of written report of the
informant Sohan Lal he registered the First
Information Report of Case Crime No.220 of
2000, under Sections 147, 148, 149, 302 and
120B I.P.C. against Hukum Singh and others
and proved the F.I.R. as paper No.4Ka in his
hand writing and signature, which has been
marked as Ext. Ka.6 and on the same day he
also endorsed the F.I.R. in G.D. No.10 at 6.30
a.m. and proved the same as Ext. Ka.7.

19. PW6-S.I. Surendra Singh has
deposed before the trial Court that on
25.10.2000 he was posted as Station House
Officer at Police Station Ajnar, in his
presence the F.I.R. was registered and he
took over the investigation of the case. He
further prepared the inquest report of the
three deceased, namely, Jagat Singh Smt.
Manni @ Mannu, wife of Jagat Singh and
Km. Anita, daughter of Jagat Singh and
completed all the formalities of inquest etc.
and got the dead body of the three deceased
sealed and sent the same for post mortem.
He recorded the statement of the informant
Sohan Lal under Section 161 Cr.P.C. and
further prepared the site plan of the place of
occurrence, recovery memo and proved the
same as Ext. Ka.8 to Ka.28. He further
recorded the statement of Prithvi Raj, Jai
Hind and Basanta and further got the
recovery of axe at the pointing of accused
Kalyan Singh and proved the same as Ext.
Ka.29. He further took into custody the
torches which were handed over by the
witnesses, namely, Sohan Lal, Jai Hind and
prepared the material exhibit regarding the
494 INDIAN LAW REPORTS ALLAHABAD SERIES
same and proved the same as Ext. Ka.30 &
31.

20. This witness further stated that
statement of one of the accused, namely,
Munir Khan was recorded by S.I. Brij Mohan
Sharma under Section 161 Cr.P.C. and also
sent the case property for examination to the
Forensic Science Lab at Agra as per orders of
C.J.M. concerned. The papers which were
prepared and signed by Brij Mohan as paper
no.29 Ka was proved by him as Ext. Ka.32.
S.I. Brij Mohan Sharma after concluding the
investigation on 22.01.2001 submitted charge
sheet against the accused Hukum Singh and
two others and proved the same as Ext.
Ka.33. This witness further stated that S.I.
Brij Mohan Sharma was admitted in hospital
at Jhansi as he met with an accident in which
he received injury and was unable to move.

21. The accused in their statements
recorded under Section 313 Cr.P.C. have
denied the prosecution case excepting
relationship of the three deceased with each
other and further relationship between the
accused. They categorically stated in their
statements under Section 313 Cr.P.C. that the
motive which has been suggested for the
commission of the crime, is absolutely false
and incorrect and further denied the
deposition of the eye witnesses against them
and further the investigation which has been
carried out against them, was also denied by
them. Accused Udai Bhan has categorically
stated in his statement under Section 313
Cr.P.C. that for the last several years he was
living at Lucknow and doing Government job
but he has been falsely implicated in the
present case along with his family members.

22. The trial Court after examining
the prosecution evidence and the defence
version given by the accused in their
statements under Section 313 Cr.P.C. found
the prosecution case proved against the
accused and has convicted and sentenced
them for the offence in question. Being
aggrieved by the same, the accused have
preferred the instant appeals before this
Court.

23. Heard Sri Sunil Kumar Singh,
learned counsel for the appellant, Ms.
Archana Singh, learned A.G.A. appearing
for the State and perused the lower court
record.

24. It has been contended by learned
counsel for the appellant that admittedly
as per the prosecution case, the appellant
Udai Bhan is said to have hatched
conspiracy with his brother Hukum Singh
and father Kalyan Singh for committing
the murder of the three deceased, namely,
Jagat Singh, his wife Smt. Mannu and
daughter Km. Anita. He further submitted
that
the
motive
which
has
been
suggested, for committing the crime by
the accused persons, is absolutely false as
few days prior to the present incident,
i.e., 10-15 days before, the deceased
Jagat Singh, had executed a ''will deed' in
favour of his sister Smt. Gyan Devi, his
wife Mannu and daughter Km. Anita of
his landed property and after the incident,
Mulayam Singh, son of Gyan Devi had
filed an application for mutation of the
property of the deceased Jagat Singh in
favour
of
his
mother
before
the
competent authority. The deceased had
also called Basanta who is his brother-inlaw at Gulpahar in this regard. PW3
Basanta has stated before the trial Court
that he was the witness of the said ''will
deed' of the deceased Jagat Singh, thus, it
was argued that the deceased Jagat Singh
along with his wife and daughter might
have been killed by Mulayam Singh in
order to grab the property of Jagat Singh.
11 All. Udai Bhan Vs. State of U.P.
495

25. He next argued that the appellant
Udai Bhan for the last several years was
living at Lucknow and doing a Government
Job, hence, he has no concern with the
incident which has taken place in his native
village.The prosecution has led evidence
against the appellant Udai Bhan for
conspiring the murder of the three deceased
and in this regard there is evidence of
PW2-Prithivi Raj and PW3-Basanta who
have also deposed against the appellant
Udai Bhan with respect to conspiracy for
the murder of the three deceased.

26. Learned counsel for the appellant
has drawn the attention of this Court
towards the statement of PW2 Prithvi Raj
who has stated before the trial Court that
prior to one month before the incident, he
heard the accused Udai Bhan, Hukum
Singh and Kalyan Singh at 9 a.m. in the
day talking together from the courtyard of
his house close to the side of a pathway
saying that all the three be killed otherwise
Jagat Singh would give all his landed
property to the in-laws of Km. Anita. He
further stated that the accused Udai Bhan
was working at Lucknow but when this
conversation was going on, Udai Bhan had
come to the village and Udai Bhan had
planned the murder of the three deceased
with Hukum Singh and Kalyan Singh.
Similarly, PW7 Jai Hind has also reiterated
the same version as has been given by PW2
Prithvi Raj before the trial Court against the
appellant Udai Bhan in his evidence. So far
as evidence of PW1 Sohan Lal and PW3
Basanta is concerned, it is submitted that
they have also deposed before the trial
Court with respect to conspiring the murder
of the three deceased by the appellant Udai
Bhan along with other co-accused.

27. It was further urged that so far as
the evidence of PW2 Prithvi Raj and PW7
Jai Hind is concerned, their evidence is not
sufficient and reliable to convict and
sentence the appellant Udai Bhan for
conspiring
the
murder
of
the
three
deceased. He submitted that no specific
date has been stated either by PW2-Prithivi
Raj or PW7-Jai Hind and only vague
statements have been made by them that
one month or so the appellant Udai Bhan
had conspired the murder of the three
deceased with his father Kalyan Singh and
brother Hukum Singh for the motive which
has been suggested by the prosecution.
Besides the same, there is no other
evidence even that too of circumstantial in
nature to show that the appellant Udai Bhan
conspired the murder of the three deceased.

28. It has been further argued by
learned counsel for the appellant that PW1Sohan Lal who claims himself to be an eye
witness of the occurrence, has initially in
the F.I.R. has stated that it was the
appellant Udai Bhan who conspired the
murder of the three deceased, but in his
evidence before the trial Court he stated
that
the
appellant
Udai
Bhan
also
committed the murder of the three deceased
with is father Kalyan Singh and brother
Hukum Singh and in his cross-examination
he admitted the fact that the appellant Udai
Bhan was not present at the place of
occurrence.

29. It was further argued by the
learned counsel for the appellant that in the
statement under Section 313 Cr.P.C. the
appellant Udai Bhan has categorically
taken the plea that he was falsely
implicated in the present case though for
the last several years he was living at
Lucknow and doing a Government job, but
then too he was falsely implicated in the
present
case
along with his
family
members.
496 INDIAN LAW REPORTS ALLAHABAD SERIES

30. He next argued that the trial Court
has misread the evidence on record and has
wrongly convicted the appellant Udai Bhan
along with other co-accused for conspiring
the murder of the three deceased, which is
against the evidence on record and is liable
to be set aside by this Court and the
appellant Udai Bhan be acquitted.

31. Per contra, Ms. Archana Singh,
learned A.G.A. appearing for the State has
vehemently opposed the arguments of
learned counsel for the appellant and
submitted that three persons of a family
were murdered by the father Kalyan Singh
and brother Hukum Singh of the appellant
Udai Bhan who has conspired the murder
of the three deceased for grabbing the
landed property of deceased Jagat Singh
who wanted to give the same to his
daughter Km. Anita after marriage, which
was objected by him.

32. She further submitted that no
doubt the accused Kalyan Singh and
Hukum Singh have been assigned the
active role for murdering the three
deceased with axe along with 2-3 unknown
persons who were armed with lathi, farsa
and countrymade pistal and all of them
received several injuries on their person
i.e., lacerated wound, incised wound,
firearem wound etc. and the incident was
witnessed by the informant PW1 Sohan Lal
who is the cousin brother of the deceased
Jagat Singh, PW2 Prithvi Raj, PW7 Jai
Hind and PW3 Basanta who is brother-inlaw of the deceased Jagat Singh, the ocular
testimony
corroborates
the
medical
evidence.The evidence of PW2 and PW7
who have deposed before the trial Court
regarding conspiracy of murder of the three
deceased by the appellant Udai Bhan for
the motive suggested by the prosecution, is
sufficient enough for convicting and
sentencing the appellant Udai Bhan in the
present case by the trial Court, the same
does not suffer from any infirmity or error
in law and be up-held by this Court. The
appeal of the appellant Udai Bhan is devoid
of merits and be dismissed.

33. We have considered the respectful
submissions advanced by learned counsel
for the parties and have gone through the
impugned judgement and the entire record
of the trial Court.

34. The three accused persons,
namely, Kalyan Singh and his two sons,
namely, Hukum Singh and Udai Bhan were
named in the F.I.R. which was lodged by
PW1 Sohan Lal after the incident on the
next day at 6:00 a.m., i.e. on 25.10.2000 at
Police Station Ajnar which is 6 Kms. away
from the place of occurrence for the murder
of the three deceased, i.e., Jagat Singh, his
wife Smt. Mannu and daughter Km. Anita.

35. The prosecution case as emerges
out from the F.I.R. is that the accused
Kalyan Singh and Hukum Singh along with
2-3 unknown persons have committed the
murder of the three deceased in the night of
25.10.2000 at 1:30 a.m. on account of the
fact that deceased Jagat Singh wanted to
give his entire landed property to his
daughter Km. Anita after her marriage
which he had fixed in the Village Lamhora,
which was being objected by the accused
persons.
The
eye
witnesses
of
the
occurrence, namely, PW1-Sohan Lal who
is cousin brother of the deceased Jagat
Singh, PW2 Prithivi Raj who is an
independent witness, PW3 Basanta who is
brother-in-law of the deceased Jagat Singh
and PW7 Jai Hind who is another
independent witness, have categorically
stated that it was the accused Kalyan Singh
and his son Hukum Singh who were armed
11 All. Udai Bhan Vs. State of U.P.
497
with axe had assaulted the three deceased
in their house and dead body of Jagat Singh
was lying in the courtyard, that of Smt.
Mannu on the roof of the house and that of
Km. Anita in the lane of the house of one
Bal Kishan.

36. In the F.I.R. as well as in the
evidence which has been led by the
prosecution against the appellant Udai
Bhan is that a conspiracy is said to have
been hatched by him along with two coaccused for the murder of the three
deceased.

37. In order to adjudicate the case of
the appellant Udai Bhan for conspiring the
murder of the three deceased, the evidence
led by prosecution of PW2 Prithvi Raj and
PW7 Jai Hind is to be scrutinized by this
Court, which is reproduced here-in-below:-

^^ih0MCyw&2 i`Fohjkt& bl ?kVuk ls
igys djhc 1 lok ekg igys eqfYteku mn;Hkku]
gqdqeflag dY;k.kflag dks djhc 9 cts fnu esa
vius edku ds vkWxu ls yxh jkLrs ds fdukjs
ckrs djrs lquk FkkA ;s yksx vkil esa dg jgs FksA
eqfYteku gqdqe flag] mn;Hkku o dY;k.kflag
vkil esa dg jgs Fks fd bu yksxks dks ekj Mkyks
ugha rks txr flag dh lkjh tk;tkn dq0 vuhrk
ds llqjky okys ys tk;sxsaA ;g ckr eSaus] t;fgan
o lq?kj flag us dh lquh FkhA eqfYte mn;Hkku
y[kuÅ esa ukSdjh djrk gS tc ckrphr gks jgh
Fkh rks eqfYte mn;Hkku xkWo vk;k FkkA eqfYte
mn;Hkku us gqdqeflag o dY;kuflag us bl gR;k
dh ;kstuk cuk;h FkhA

ih0MCyw&7
t;fgUn&
mn;Hkku
vfHk;qDr y[kuÅ esa ukSdjh djrk gSA og ?kVuk
ds ,d ekg igys xkWo eoS;k vk;k FkkA eSaus vius
dkuksa ls lquk Fkk fd vfHk;qDr x.k mn;Hkku
gqdqe dY;k.k flag vkil esa ckrsa dj jgs Fks fd
vuhrk dh 'kknh u gks ikos blds igys gh rhuksa
yksxksa dks ekj Mkyksa rkfd budh tk;nkn gesa
fey tkosA ;g rhuksa eqyfteku ;g ckrphr vius
?kj esa dj jgs FksA eSaus ;g ckr muds edku ds
njokts xyh ls lquh FkhA ml le; esjs lkFk
lksuflag o i`Fokhjkt Hkh FksA^^

38. From the above evidence of the
aforesaid two witnesses, it is apparent that
no specific date has been stated by either of
the witnesses on which the appellant Udai
Bhan along with his father Kalyan Singh
and brother Hukum Singh is said to have
conspired the murder of the three deceased.
Further, it is also not apparent from the
evidence of PW2 that he saw the appellant
Udai Bhan along with his father and
brother for conspiring the murder of the
three deceased and it was only stated by
PW2 that he heard the appellant Udai Bhan
from the courtyard of his house talking to
each other along with the other co-accused
persons to kill them otherwise deceased
Jagat Singh will give all his landed
property to the in-laws of his daughter Km.
Anita.

39. Similarly, from the evidence of
PW7 it is apparent that he had also not seen
the
appellant
Udai
Bhan
having
conversation with his father Kalyan Singh
and brother Hukum Singh for the murder of
the three deceased but only heard the
conversation from the door of the house
which was in the lane. Thus, the evidence
of conspiracy led by the prosecution of
PW2 Prithvi Raj and PW7 Jai Hind against
the appellant Udai Bhan is not sufficient
enough to prove beyond reasonable doubt
that the appellant Udai Bhan has conspired
the murder of the deceased along with two
co-accused.

40. The most important ingredient of
conspiracy is agreement between two or
more persons to do an illegal act. In a
criminal case the onus lies on the
prosecution to prove affirmatively that
accused
was
directly
and
personally
498 INDIAN LAW REPORTS ALLAHABAD SERIES
connected with the acts and omission
attributable to the crime committed by him.
It is settled proposition of law that act or
action of one of the accused cannot be used
as evidence against the other. To attract
applicability of Section 10 of the Evidence
Act the Court must have reason to believe
that two or more persons have conspired
together for committing an offence.

41. The Apex Court in the case of
John Pandian Vs. State represented by
Inspector of Police,Tamil Nadu, reported
in (2010) 14 SCC 129 in paragraph
nos.107, 108, 109, 110, 111, 112, 113, 114,
115 & 116 has laid down the law regarding
criminal conspiracy, which are reproduced
here-in-below:-

"107. The law on conspiracy has
been stated time and again by this Court. In
Major E.G. Barsay v. State of Bombay
[AIR 1961 SC 1762 : (1961) 2 Cri LJ 828] ,
Subba Rao, J. observed: (AIR p. 1778, para
31)

"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."

108. In Halsbury's Laws of
England [ 4th Edn., Vol. 11, p. 44, para 58]
the definition of conspiracy is as under:

"58. Meaning of conspiracy.--
Conspiracy consists in the agreement of
two or more persons to do an unlawful act,
or to do a lawful act by unlawful means. It
is an indictable offence at common law....

The essence of the offence of
conspiracy is the fact of combination by
agreement.The agreement may be express
or implied, or in part express and in part
implied. ... and the offence continues to be
committed so long as the combination
persists, that is until the conspiratorial
agreement is terminated by completion of
its performance or by abandonment or
frustration or however it may be."

109. In American Jurisprudence,
2nd Edn., Vol. 16, p. 129, the following
definition of conspiracy is given:

"A conspiracy is said to be an
agreement between two or more persons to
accomplish together a criminal or unlawful
act or to achieve by criminal or unlawful
means an act not in itself criminal or
unlawful... The unlawful agreement and not
its accomplishment is the gist or essence of
the crime of conspiracy."

110. Lastly, in the celebrated case
of Kehar Singh v. State (Delhi Admn.)
[(1988) 3 SCC 609 : 1988 SCC (Cri) 711] it
was observed by Jagannatha Shetty, J.: (SCC
p. 731, para 271)

"271. ... ''The gist of the offence of
conspiracy then lies, not in doing the act, or
effecting
the
purpose
for
which
the
conspiracy is formed, nor in attempting to do
them, nor in inciting others to do them, but in
the forming of the scheme or agreement
between the parties. Agreement is essential.
Mere knowledge, or even discussion, of the
plan is not, per se, enough.' [Ed.: As
observed in Russell on Crime, 12th Edn., Vol.
I, p. 202.]
 (emphasis ours)

111. In the celebrated judgment of
State v. Nalini [(1999) 5 SCC 253 : 1999
SCC (Cri) 691] S.S.M. Mohd. Quadri, J.
relying upon Van Riper v. United States [13
F 2d 961 (2nd Cir 1926)] observed [Ed.:
State (NCT of Delhi) v. Navjot Sandhu,
(2005) 11 SCC 600 at p. 687, para 90.] :

"When
men
enter
into
an
agreement for an unlawful end, they
become ad hoc agents for one another and
have made a partnership in crime."
11 All. Udai Bhan Vs. State of U.P.
499

112. Other celebrated decisions
on the question of conspiracy are Yash Pal
Mittal v. State of Punjab [(1977) 4 SCC
540 : 1978 SCC (Cri) 5] as also State of
H.P. v. Krishan Lal Pardhan [(1987) 2
SCC 17 : 1987 SCC (Cri) 270] . It has been
held in Mohd. Khalid v. State of W.B.
[(2002) 7 SCC 334 : 2002 SCC (Cri) 1734]
and in Mohd. Usman Mohd. Hussain
Maniyar v. State of Maharashtra [(1981) 2
SCC 443 : 1981 SCC (Cri) 477] that the
agreement amongst the conspirators can be
inferred by necessary implication. All these
cases together came to be considered in
State (NCT of Delhi) v. Navjot Sandhu
[(2005) 11 SCC 600 : 2005 SCC (Cri)
1715] where even the celebrated judgment
of V.C. Shukla v. State (Delhi Admn.)
[(1980) 2 SCC 665 : 1980 SCC (Cri) 561]
came to be considered wherein it was
observed by Fazal Ali, J.: (V.C. Shukla
case [(1980) 2 SCC 665 : 1980 SCC (Cri)
561] , SCC pp. 669-70, para 8)

"8. ... in most cases it will be
difficult to get direct evidence of an
agreement to conspire but a conspiracy can
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."
 (emphasis supplied)

113. It is significant at this stage
to note the observations in V.C. Shukla
[(1980) 2 SCC 665 : 1980 SCC (Cri) 561]
wherein it was laid that in order to prove
criminal
conspiracy,
there
must
be
evidence direct or circumstantial to show
that there was an agreement between two
or more persons to commit an offence. It
was further held that 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.

114. Relying on V.C. Shukla case
[(1980) 2 SCC 665 : 1980 SCC (Cri) 561] ,
Pasayat, J. in Esher Singh v. State of A.P.
[(2004) 11 SCC 585 : 2004 SCC (Cri) Supp
113] observed that: (Esher Singh case
[(2004) 11 SCC 585 : 2004 SCC (Cri) Supp
113] , SCC p. 607, para 38)

"38. ... the prosecution has to
discharge its onus of proving the case
against the accused beyond reasonable
doubt. The circumstances in a case, when
taken together on their face value, should
indicate the meeting of minds between the
conspirators for the intended object of
committing an illegal act or an act which is
not illegal, by illegal means. A few bits
here and a few bits there on which the
prosecution relies cannot be held to be
adequate for connecting the accused with
the commission of the crime of criminal
conspiracy. It has to be shown that all
means adopted and illegal acts done were
in furtherance of the object of conspiracy
hatched. The circumstances relied on for
the purposes of drawing an inference
should be prior in point of time than the
actual commission of the offence in
furtherance of the alleged conspiracy."
 (emphasis supplied)

115. In Esher Singh case [(2004)
11 SCC 585 : 2004 SCC (Cri) Supp 113]
this Court held that the conspiracy was
proved between the nine accused. A
systematic role played by each accused was
highlighted. Pasayat, J. in that judgment
also considered the decision in Bhagwan
Swarup Lal Bishan Lal v. State of
Maharashtra [AIR 1965 SC 682 : (1965) 1
Cri LJ 608] and observed that (Esher Singh
case [(2004) 11 SCC 585 : 2004 SCC (Cri)
Supp 113] , SCC p. 606, para 37) "[t]here
500 INDIAN LAW REPORTS ALLAHABAD SERIES
is no difference between the mode of proof
of the offence of conspiracy and that of any
other offence". The other decisions in State
of Maharashtra v. Som Nath Thapa [(1996)
4 SCC 659 : 1996 SCC (Cri) 820 : JT
(1996) 4 SC 615] , Ajay Aggarwal v. Union
of India [(1993) 3 SCC 609 : 1993 SCC
(Cri) 961] as also Mohd. Usman case
[(1981) 2 SCC 443 : 1981 SCC (Cri) 477]
and Yash Pal Mittal [(1977) 4 SCC 540 :
1978 SCC (Cri) 5] were considered in that
decision. The law laid down in Ajay
Aggarwal case [(1993) 3 SCC 609 : 1993
SCC (Cri) 961] was reiterated and it was
held that: (Esher Singh case [(2004) 11
SCC 585 : 2004 SCC (Cri) Supp 113] ,
SCC p. 610, para 45)

"45. ... ''8. ... It is not necessary
that each conspirator must know all the
details of the scheme nor be a participant
at every stage. It is necessary that they
should agree for design or object of the
conspiracy. Conspiracy is conceived as
having three elements: (1) agreement; (2)
between two or more persons by whom the
agreement is effected; and (3) a criminal
object, which may be either the ultimate
aim of the agreement, or may constitute the
means, or one of the means by which that
aim is to be accomplished.' [ As observed
in Ajay Aggarwal v. Union of India, (1993)
3 SCC 609, p. 617, para 8.] "

These decisions were thereafter
considered in Navjot Sandhu case [(2005)
11 SCC 600 : 2005 SCC (Cri) 1715] .

116. In K.R. Purushothaman v.
State of Kerala [(2005) 12 SCC 631 :
(2006) 1 SCC (Cri) 686] a specific
observation was made (SCC p. 631d-e) to
the effect that all conspirators need not
take active part in the commission of each
and every conspiratorial act but, mere
knowledge, even discussion, of the plan
would not constitute conspiracy. It was
further observed that (SCC p. 631e-f) each
one of the circumstances should be proved
beyond
reasonable
doubt
and
such
circumstances proved must form a chain of
events from which the only irresistible
conclusion is about the guilt of the accused
which can be safely drawn and no other
hypothesis of the guilt is possible. We
respectfully agree with the law laid down in
Navjot Sandhu case [(2005) 11 SCC
600:2005 SCC (Cri) 1715] and K.R.
Purushothaman case [(2005) 12 SCC 631 :
(2006) 1 SCC (Cri) 686] ."

42. Similarly, in the case of Baliya
alias Bal Kishan Vs. State of Madhya
Pradesh, reported in (2012) 9 SCC 696,
the Apex Court has also reiterated the law
regarding criminal conspiracy in paragraph
nos.15, 16 & 17, which are reproduced
here-in-below:-

15. The offence of "criminal
conspiracy" is defined in Section 120-A of
the Penal Code whereas Section 120-B of
the Code provides for punishment for the
said offence.