# 5 S.C.R. 605 R. DINESHKUMAR @ DEENA v. STATE REP. BY INSPECTOR OF POLICE & OTHERS

- **Citation:** [2015] 5 S.C.R. 605
- **Court:** Supreme Court of India
- **Decided:** 2015-03-16
- **Case number:** Criminal Appeal No.454 of 2015
- **Bench:** J. Chelameswar, C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-605-r-dineshkumar-deena-v-state-rep-by-inspector-of-police-others-30848
- **Pages:** 38

## Headnote

A
B
Code of Criminal Procedure, 1973 - s. 319 - Power c
under - Exercise of - Summoning of prosecution witness
as an additional accused u/s. 319 - On facts, murder of 'V'
- Trial of seven persons including appellant - Evidence of
PW 64 as to the genesis of the conspiracy to kill 'V' of which
various accused and also PW64 were parties at different D
points of time; and that he developed cold feet after the
initial stage and withdrew from the conspiracy and did not
participate in the actual killing of 'V' - Thereafter, appellant
filed petition uls. 319 seeking to summon PW64 as an E
additional accused to be tried together with the rest of the
accused, who were already facing trial - Dismissed by trial
court - Subsequently, revision petition dismissed by the
High Court holding that PW64 cannot be prosecuted by
summoning him as an additional accused uls. 319 Cr.P.C.
F
however, he could be separately prosecuted for offence
u/s. 1208 /PC - On appeal, held: High Court rightly refused
to summon PW64 as an accused to be tried alongwith the
appellant and others - However, erred in holding that he G
could not be tried a/ongwith the other accused already facing
trial as the said conspiracies did not form part of the same
transaction - To meet ends of justice trial court directed to
grant pardon in favour of PW64 - s. 307.
H
605
606
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
Evidence Act, 1872 - s. 132 proviso - Rule against selfincrimination under - Held: Proviso to s. 132 embodies facet
of the rule against self-incrimination and is statutory
immunity against self incrimination which deserves the most
liberal construction - Thus, no prosecution can be launched
B against the maker of a statement falling within the sweep of
s. 132 on t/Je basis of the answer given by a person while
deposing as a witness before a Court.
Disposing of the appeal, the Court
c
HELD: 1.1 In the instant case, except the evidence
of PW64 and his statement u/s. 164 Cr.P.C. there is no
other evidence on record of the Sessions Court to
indicate that PW64 has committed any offence. Both the
D evidence and the statement u/s. 164 Cr.P.C. of PW64
prima facie indicate a conspiracy to kill 'V' to which
conspiracy PW64 was a party at least at the initial stage.
According to PW64, he developed cold feet after the
initial stage and withdrew from the conspiracy and did
E not participate in the actual killing of 'V'. The evidence
on record indicate that as of today there is no evidence
to prosecute PW64 for any offence other than the one
punishable u/s. 1208 IPC. Therefore, if law permits the
use of the content of either the evidence given at trial
F or the statement made u/s.164 Cr.P.C. by PW64, he
could be tried for an offence punishable u/s. 120B IPC.
Because, on his own admission, PW64 agreed to kill 'V'
for a price and accepted money from A2 towards the
G
part payment of such price and also drafted A3 into the
conspiracy. [Paras 11, 15] [617-A-D] [619-D-E]
1.2 As regards, the question whether the offence
said to have been committed by PW64 and the offence
for which the appellant and other accused in Sessions
H Case are being tried were "committed in the course of
•
R. DINESHKUMAR@ DEENA v. STATE REP. BY
607
INSPECTOR OF POLICE
the same transaction", the High Court concluded "that A
the conspiracie~ committed by A2 and the 2nd
respondent/PW 64 and the conspiracy between the 2nd
respondent/P.W. 64 and A3 have got nothing· to do with
the subsequent conspiracy hatched between A2, A3 and
the rest of the accused." The conclusion by the High B
Court that PW64 could not be tried together with the
other accused already facing trial in Sessions Case as
the said three conspiracies "do not form part of the
same transaction", cannot be accepted. [Para 17, 18)
[619-G-H; 620-A-D]
C
1.3 It is not a case of either the prosecution or PW64
that the murder of 'V' was committed by the persons
other than the accused facing the trial. PW64 only gave
evidence as to the genesis of the conspiracy to k

## Text

_Characters 0–39,987 of 68,634. This is a partial read: ask again with offset=39987 for what follows._

(2015] 5 S.C.R. 605
R. DINESHKUMAR @ DEENA
v.
STATE REP. BY INSPECTOR OF POLICE & OTHERS
(Criminal Appeal No.454 of 2015)
MARCH 16, 2015
[J. CHELAMESWAR AND C. NAGAPPAN, JJ.]
A
B
Code of Criminal Procedure, 1973 - s. 319 - Power c
under - Exercise of - Summoning of prosecution witness
as an additional accused u/s. 319 - On facts, murder of 'V'
- Trial of seven persons including appellant - Evidence of
PW 64 as to the genesis of the conspiracy to kill 'V' of which
various accused and also PW64 were parties at different D
points of time; and that he developed cold feet after the
initial stage and withdrew from the conspiracy and did not
participate in the actual killing of 'V' - Thereafter, appellant
filed petition uls. 319 seeking to summon PW64 as an E
additional accused to be tried together with the rest of the
accused, who were already facing trial - Dismissed by trial
court - Subsequently, revision petition dismissed by the
High Court holding that PW64 cannot be prosecuted by
summoning him as an additional accused uls. 319 Cr.P.C.
F
however, he could be separately prosecuted for offence
u/s. 1208 /PC - On appeal, held: High Court rightly refused
to summon PW64 as an accused to be tried alongwith the
appellant and others - However, erred in holding that he G
could not be tried a/ongwith the other accused already facing
trial as the said conspiracies did not form part of the same
transaction - To meet ends of justice trial court directed to
grant pardon in favour of PW64 - s. 307.
H
605
606
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
Evidence Act, 1872 - s. 132 proviso - Rule against selfincrimination under - Held: Proviso to s. 132 embodies facet
of the rule against self-incrimination and is statutory
immunity against self incrimination which deserves the most
liberal construction - Thus, no prosecution can be launched
B against the maker of a statement falling within the sweep of
s. 132 on t/Je basis of the answer given by a person while
deposing as a witness before a Court.
Disposing of the appeal, the Court
c
HELD: 1.1 In the instant case, except the evidence
of PW64 and his statement u/s. 164 Cr.P.C. there is no
other evidence on record of the Sessions Court to
indicate that PW64 has committed any offence. Both the
D evidence and the statement u/s. 164 Cr.P.C. of PW64
prima facie indicate a conspiracy to kill 'V' to which
conspiracy PW64 was a party at least at the initial stage.
According to PW64, he developed cold feet after the
initial stage and withdrew from the conspiracy and did
E not participate in the actual killing of 'V'. The evidence
on record indicate that as of today there is no evidence
to prosecute PW64 for any offence other than the one
punishable u/s. 1208 IPC. Therefore, if law permits the
use of the content of either the evidence given at trial
F or the statement made u/s.164 Cr.P.C. by PW64, he
could be tried for an offence punishable u/s. 120B IPC.
Because, on his own admission, PW64 agreed to kill 'V'
for a price and accepted money from A2 towards the
G
part payment of such price and also drafted A3 into the
conspiracy. [Paras 11, 15] [617-A-D] [619-D-E]
1.2 As regards, the question whether the offence
said to have been committed by PW64 and the offence
for which the appellant and other accused in Sessions
H Case are being tried were "committed in the course of
•
R. DINESHKUMAR@ DEENA v. STATE REP. BY
607
INSPECTOR OF POLICE
the same transaction", the High Court concluded "that A
the conspiracie~ committed by A2 and the 2nd
respondent/PW 64 and the conspiracy between the 2nd
respondent/P.W. 64 and A3 have got nothing· to do with
the subsequent conspiracy hatched between A2, A3 and
the rest of the accused." The conclusion by the High B
Court that PW64 could not be tried together with the
other accused already facing trial in Sessions Case as
the said three conspiracies "do not form part of the
same transaction", cannot be accepted. [Para 17, 18)
[619-G-H; 620-A-D]
C
1.3 It is not a case of either the prosecution or PW64
that the murder of 'V' was committed by the persons
other than the accused facing the trial. PW64 only gave
evidence as to the genesis of the conspiracy to kill 'V' D
of which various accused and also PW64 are parties at
different points of time. Going by the test laid down in
Ganeswara Rao case, assuming the correctness of the
conclusion recorded by the High Court that there are
three different conspiracies between different parties, it E
cannot be said that these offences are so wholly
unconnected that they cannot be tried together. Then
the only other consideration which might preclude a
joint trial is that such a joint trial would either cause F
embarrassment or difficulty to the accused in defending
themselves. [Para 25] [626-C-E]
1.4 It is not the case of the accused that they would
have some difficulty in defending themselves if PW64
is also tried alongwith them for the offence of G
conspiracy to kill 'V'. On the other hand, it is the case
of the· accused that not trying PW64 along with them
would cause prejudice to their defence. Therefore, the
High Court was. clearly wrong in concluding that PW64 H
608
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A could not be tried alongwith the other accused. [Paras
26, 27] [626-F-G]
1.5 The second requirement u/s. 319 Cr.P.C. for a
court to summon a person is that it must appear from
B the evidence that such a person has committed an
offence. It is axiomatic that the deposition made by a
witness during the course of the trial of a sessions case
is certainly evidence within the meaning of that
expression as defined u/s. 3 of the Evidence Act. The
C High Court concluded that the evidence of respondent
no.2, as a prosecution witness before the trial court, and
the incriminating answers given by him amount to
compelled testimony falling witiii11 tne sweep of s.132
and thus, he is protected by the proviso to s.132. [Paras
D 28, 31] [627-A-B; 628-A-B]
1.6 The rule against self-incrimination found
expression in Indian law much before advent of the
Constitution of India [under Article 20(3)]. Facets of such
E rule are seen in Section 161 Cr.P.C., 1898. Section 161
of the Cr.P.C., 1973 corresponds to Section 161 of the
Cr.P.C., 1898. Another facet of the rule against selfincrimination finds expression in Sections 25 and 26 of
the Evidence Act which make a confession made to a
F police officer or a confession made while in the custody
of the police inadmissible in evidence. The proviso to
s. 132 of the Evidence Act embodies another facet of the
rule against self-incrimination and the same is statutory
immunity against self incrimination which deserves the
G most liberal construction. Therefore, no prosecution
can be launched against the maker of a statement falling
within the sweep of s. 132 on the basis of the "answer"
given by a person while deposing as a "witness" before
H a Court. [Paras 45, 47) [636-G-H; 637-A-C; 638-D]
R. DINESHKUMAR@ DEENA v. STATE REP. BY
609
INSPECTOR OF POLICE
1.7 The High Court rightly refused to summon PW64 A
as an accused to be tried alongwith the appellant and
others. [Para 48) [638-E]
1.8 The proposition whether the prosecution has a
liberty to examine any person as a witness in a criminal B
prosecution notwithstanding that there is some material
available to the prosecuting agency to indicate that
such a person is also involved in the commission of the
crime for which the other accused are being tried,
requires a deeper examination. In the circumstances, C
the proposition is not examined. However, in view of the
facts. 307 Cr.P.C. authorizes even a Court conducting
trial to tender pardon to such a person, the ends of
justice would be met by directing the trial court to grant
pardon in favour of PW64 after following the appropriate D
procedure of law and record his evidence afresh. [Paras
55, 56] [641-F-H; 642-A-B]
The Queen v. Gopal Doss & Another ILR 3 Mad. 271
- approved.
E
Balbir v. State of Haryana & Another 1999 (4) Suppl.
SCR 120 : (2000) 1 SCC 285 - held inapplicable.
Major E.G. Barsay v. State of Bombay AIR 1961 SC
1762: 1962 SCR 195; State (NCT of Delhi) v. Navjot
Sandhu alias Afsan Guru 2005 (2) Suppl. SCR 79:
(2005) 11 SCC 600; M.L. Sharma & Others v. Central
Bureau of Investigation 2008 Crl. L.J. 1725; State of
Andhra Pradesh v. Cheemalapati Ganeswara Rao &
Another AIR 1963 SC 1850: 1964 SCR 297; T.B.
Mukerji v. The State AIR 1954 All 501; Laxmipat
Choraria & Ors v. State of Maharashtra (1968) 2 SCR
624; Nandini Satpathy v. P.L. Dani & Another 1978 (3)
SCR 608: (1978) 2 SCC 424; Laxmipat Choraria &
F
G
H
610
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
Others v. State of Maharashtra AIR 1968 SC 938: 1968
SCR 624; A.R. Antulay v. R.S. Nayak & Anr 1988 (1)
Suppl. SCR 1: (1988) 2 SCC 602 - referred to.
Case Law Reference
B
1962 SCR 195
referred to.
Para 13
2005 (2) Suppl. SCR 79
referred to.
Para 14
1999 (4) Suppl. SCR 120
held
c
inapplicable. Para 18
2008 Crl. L.J. 1725
referred to.
Para 18
1964 SCR 297
referred to.
Para 20
D
AIR 1954 All 501
referred to.
Para 21
ILR 3 Mad. 271
approved.
Para 32
(1968) 2 SCR 624
referred to.
Para 39
E
1978 (3) SCR 608
referred to.
Para 44
1988 (1) Suppl. SCR 1
referred to.
Para 53
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
F No. 454 of 2015.
From the Judgment and Order dated 13.11.2014 of the
High Court of Madras in Crl. R. C. No. 425/2014.
A. Sharan, Chandra Shekharan, Amit Anand Tiwari,
G Shakun Sharma, Abhinandan Banerjee for the Appellant.
Karpaga Vinayagam, Mayil Samy K, G. Ananda Selvam,
Ram Sankar, V. S. Lakshmi, Mehoobu, Kumaran,
Muthukrishnan, N. Vijaya Raj, Subramonium Prasad, Yogesh
H Kanna, J. Janani, M. Aggarwal, Rajiv Dalal Barrister for the
R. DINESHKUMAR@ DEENA v. STATE REP. BY
611
INSPECTOR OF POLICE
Respondents.
A
Sudha Vijaya Kumar (Respondent-in-person).
The Judgment of the Court was delivered by
CHELAMESWAR, J. 1, Leave granted.
2. One Vijayan @ Vijayakumar was killed on 4th June
2008 in the city of Chennai. It appears from the judgment
under appeal that the incident occurred in the following
manner:
B
c
"At the time of occurrence, the deceased was
proceeding in his car. The assailants came in a white
Ambassador car, intentionally dashed the said car
against the car driven by the deceased. As a result, the D
car driven by the deceased came to a halt. Some
people suddenly emerged and brutally attacked Vijayan
@ Vijayakumar and he succumbed to the injuries
instantaneously."
3 .. A case in Crime No.618 of 2008 came to be
registered with respect to the said incident at Abiramapuram
Police Station, Chennai. A final report came to be filed
against seven accused persons of whom the appellant herein
E
is one (A-5). All the seven accused are facing trial in Sessions F
Case No. 73 of 2009 on the file of the Principal Sessions
Judge, Chennai.
From the judgment1 under appeal, it
appears:
\
'The trial Court has framed charges under Sections
G
147, 148, 302 & 120-B IPC. As many as 71
witnesses were cited in the final report. During trial,
already 65 witnesses have been examined on the
1 Judgment dated 13.11.2014 passed by the High Court of Madras in Crf. ·
R.C. No.425 of 2014.
·
·
H
612
A
8
c
D
SUPREME COURT REPORTS
[2015] 5 S.C.R.
side of the prosecution and all such witnesses have
been cross examined by the counsel appearing for
the respective accused, except PW64. PW64 is one
Shri L. Venkatesh, the 2nd respondent in this revision
petition. After the chief examination of PW64 (the 2nd
respondent herein) was over, the petitioner herein
filed a petition in Crl.M.P. No.4188 of 2014 under
Section 319 of Cr. P. C. seeking to summon the 2nd
respondent/PW64 as an additional accused so as to
be tried together with the rest of the accused, who are
already facing trial. That petition was dismissed by
the trial court by order dated 10.03.2014. Challenging
the same, the petitioner/AS is before this court with
this criminal revision petition."
4. !he factual background in which application under
Section 319 of the Code of Criminal Procedure (for short
"Cr.P.C.") came to be filed by the appellant herein is as
follows:
.,.
E
Some three months after the death of Vijayan the 2nd
respondent herein L. Venkatesh (who was examined as
PW64 and for the sake of convenience hereinafter referred
to as "PW64") was examined by the Police on 11.09.2008
and his statement under Section 161 Cr.P.C. was recorded.
F Subsequently, on 26.09.2008, his statement was recorded
under Section 164 Cr.P.C. by the learned Metropolitan
Magistrate, George Town, Chennai. Finally, the second
respondent was examined as PW64 in the trial of the
abovementioned case. The tenor of all the three statements
G of PW64 is said to be broadly consistent. (We say so
because we have not scrutinized the statements nor we wish
to scrutinize the same and record any conclusion as the trial
of the criminal case is still pending and it would be
H inappropriate to record any definite finding at this stage of any
R. DINESHKUMAR@ DEENA v. STATE REP. BY
613
INSPECTOR OF POLICE [CHELAMESWAR, J.]
matter connected with the said case.) The translated copies A
of all the three statements of PW64 are placed on record.
The substance of the statements is that sometime in
November 2007, one Karuna, the second accused had
offered to pay PW64 an amount of Rs.5 lakhs if PW64 killed
Vijayan. PW64 accepted the proposal. Karuna made an initial
B
payment of Rs.50,000/- to PW64 on his accepting the
proposal. Thereafter, PW64 contacted the third accused and
disclosed the proposal whereupon the third accused agreed
to join PW64. The third accused was paid an amount of
Rs.10,000/- by PW64.
However, subsequently, PW64 C
developed cold feet and started maintaining a distance from
the second accused Karuna. But according to PW64, the
second accused and the third accused were in contact with
each other. After coming to know about the murder of Vijayan 0
through newspapers, PW64 contacted the third accused and
enquired about the matter upon which the third accused
informed PW64 that the third accused along with three other
named persons had murdered Vijayan and collected an
amount of Rs. 4 lakhs from the second accused. The third
E
accused further threatened PW64 that he would be "finished"
if he revealed the information to anybody.
5. By the impugned judgment, the High Court dismissed
the criminal revision. The operative portion of the judgment F
reads as follows:
"63. In view of all the above discussions, I hold that
the evidence of the 2nd respondent, as a prosecution
witness before the trial court, and the incriminating
answers given by him amount to compelled testimony
falling within the sweep of Section 132 of the
Evidence Act and thus, he is protected by the proviso
to Section 132 of the Evidence Act. In such view of
the matter, solely on the basis of his evidence as
G
H
614
A
B
c
D
E
SUPREME COURT REPORTS
[2015] 5 S.C.R.
PW64 before the trial court, he cannot be prosecuted
either by summoning him as an additional accused
in the present case or in a separate trial.
64. At the same time, for the offence of conspiracy
allegedly committed by A2 and A3 and the 2nd
respondent herein, there can be a prosecution for
offence under Section 120(8) r/w 302 of IPC. But, such
prosecution against the 2nd respondent cannot be based
on his statement made under Section 164 of Cr.P.C. in
this case and his evidence as PW64 before the trial
court in the present sessions case. If there are other
materials collected during investigation by which the said
conspiracy could be proved against him, there can be
no legal impediment to prosecute the 2nd respondent
herein along with A2 and A3 for the said offence of
conspiracy by filing a separate police report. After such
prosecution, the prosecution will be at liberty to
approach the court to tender pardon to the 2nd
respondent under Section 306 of Cr.P.C. and then to
examine him as a prosecution witness in order to prove
the said conspiracy, if need be."
6. In substance the High Court held that PW64 cannot be
prosecuted by summoning him as an additional accused
F under Section 319 Cr.P.C. in Sessions Case No. 73 of 2009
on the basis of his evidence in the said Sessions Case as
the proviso to Section 132 of the Indian Evidence Act, 1872
(hereinafter referred to as "the Evidence Act") creates an
embargo upon such a course of action. However, the High
G Court held that PW64 could be separately prosecuted for an
offence under Section 1208 of the Indian Penal Code, 1860
(hereinafter referred to as "IPC") read with Section 302 IPC
if independent evidence other than the statement under
H Section 164 Cr.P.C. of PW64 and his evidence in Sessions
R. DINESHKUMAR@ DEENA v. STATE REP. BY
615
INSPECTOR OF POLICE [CHELAMESWAR, J.)
Case No.73 of 2009 are available to prosecute him along with A
A2 andA3.
7. In our opinion, the second conclusion recorded by the
High Court contained in para 64 extracted above is really
uncalled for in the context of the issue before the High Court.
B
The question before the High Court was whether the Sessions
Court was justified in declining to summon PW64 in exercise
of its authority under Section 319 of the Cr.P.C. as an
additional accused in Sessions Case No.73 of 2009. We,
therefore, will examine only the question whether on the facts C
mentioned earlier the Sessions Court is obliged to summon
PW64 as an additional accused exercising the power under
Section 319 of the Cr.P.C.
8. Section 319 of the Cr.P.C. insofar as it is relevant for D
the purpose of the present case reads as follows:
"Section 319. Power to proceed against other
persons appearing to be guilty of offence.-(1)
Where, in the course of any inquiry into, or trial of, an
E
offence, it appears from the evidence that any person
not being the accused has committed any offence for
which such person could be tried together with the
accused, the Court may proceed against such person
for the offence which he appears to have committed."
F
The Section authorizes the Court making any inquiry into
or conducting the trial of an offence to "proceed" against any
person (other than the accused facing trial) subject to two
conditions (i) that from the "evidence" it appears to the Court G
that such a person "has committed any offence", and (2) that
such a person "could be tried together with the accused."
9. We shall first consider the question as to when could ·
a person appearing to have committed an offence "be tried H
616
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A together with the accused" already facing trial?
10. Section 2232 of the Cr.P.C. provides for the joint trial
of different accused in certain circumstances. It enumerates
different contingencies in which different persons may be
B charged and tried together. As rightly noticed by the High
Court, the only clause if at all relevant for the purpose of the
present case is Section 223(d) which stipulates that persons
accused of different offences committed in the course of the
same transaction could be charged and tried together.
c
2 Section 223. What persons may be charged jointly. - The following persons
may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course same
transaction;
D (b) persons accused of an offence and persons accused of abetment of, or
attempt to commit, such offence;
E
F
(c) persons accused of more than one offence of the same kind, within the
meaning of section 219 committed by them jointly within the period of twelve
months;
(d) persons accused of different offences committed in the course of the
same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating,
or criminal misappropriation, and persons accused of receiving or retaining,
or assisting in the disposal or concealment of, property possession of which
is alleged to have been transferred by any such offence committed by the
first named persons, or of abetment of or attempting to commit any such
last- named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian
Penal Code (45 of 1860 ). or either of those sections in respect of stolen
property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal
Code (45 of 1860) relating to counterfeit coin and persons accused of any
other offence under the said Chapter relating to the same coin, or of
abetment of or attempting to commit any such offence; and the provisions
G contained in the former part of this Chapter shall, so far as may be, apply
to all such charge:s:
Provided that where a number of persons are charged with separate
offences and such persons do not fall within any of the categories specified
in this section, the Magistrate or Court of Session may, if such persons by
an application in writing, so desire, and if he or it is satisfied that such
persons would not be prejudicially affected thereby, and it is expedient so
H to do, try all such persons together.
R. DINESHKUMAR@ DEENA v. STATE REP. BY
617
INSPECTOR OF POLICE [CHELAMESWAR, J.]
11. It is admitted on all hands that except the evidence , A
of PW64 and his statement under Section 164 Cr.P.C. there
is no other evidence on record of the Sessions Court to
indicate that PW64 has committed any offence. Both the
evidence and the statement under Section 164 Cr.P.C. of
PW64 prima facie indicate a conspiracy to kill Vijayan to B
which conspiracy PW64 was a party at least at the initial
stage. According to PW64, he developed cold feet after the
initial stage and withdrew from the conspiracy and did not
participate in the actual killing of Vijayan. Whether his
assertions in this regard are true and, if true, would legally C
absolve him of guilt are questions with which we are not
concerned for the purpose of this case. We only take note
of the evidence on record as it exists to indicate that as of
today there is no evidence to prosecute PW64 for any offence
other than the one punishable under Section 120B of IPC.
D
12. It is the settled legal position that an offence of
conspiracy3 is complete the moment two or more persons
agree to do an illegal act, or agree to do an act which is not
illegal in itself but by illegal means or in the alternative if two E
or more persons agree to cause to be done an illegal act or
an act which is not illegal through illegal means.
13. In Major E.G Barsay v. State of Bombay, AIR 1961
SC 1762, this Court held thus:
"The gist of the offence is an agreement to break the
' 120A. Definition of criminal conspiracy.-When two or more persons agree
to do, or cause to be done,-
F
(1) an illegal act, or
G
(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.-11 is immaterial whether the illegal act is the ultimate object
of such agreement, or is merely incidental to that object.
H
618
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
law. The parties to such an agreement will be guilty of
criminal conspiracy, through the illegal act agreed to be
done has not been done."
14. In State (NCT of Delhi) v. Navjot Sandhu alias
B Afsan Guru, (2005) 11 SCC 600, this Court after analyzing
the history of the offence of conspiracy held as follows:
c
D
E
F
G
H
88. Earlier to the introduction of Sections 120-A and 1208, conspiracy per se was not an offence under the Penal
Code except in respect of the offence mentioned in
Section 121-A. However, abetment by conspiracy was
and still remains to be an ingredient of abetment under
clause secondly of Section 107 IPC. The punishment
therefor is provided under various sections viz. Sections
108 to 117. Whereas under Section 120-A, the essence
of the offence of criminal conspiracy is a bare
agreement to commit the offence, the abetment under
Section 107 requires the commission of some act or
illegal omission pursuant to the conspiracy. A charge
under Sections 107 /109 should therefore be in
combination with a substantive offence, whereas the
charge under Sections 120-A/120-8 could be an
independent charge.
89. In the Statement of Objects and Reasons to the
Amendment Bill, it was explicitly stated that the new
provisions (120-A and 120-8) were "designed to
assimilate the provisions of the Penal Code to those of
the English Law .... ". Thus, Sections 120-A and 120-8
made conspiracy a substantive offence and rendered
the mere agreement to commit an offence punishable.
Even if an overt act does not take place pursuant to the
illegal agreement, the offence of conspiracy would still
be attracted. The passages from Russell on Crimes,
the House of Lords decision in Quinn v. Leathern and
R. DINESHKUMAR@ DEENA v. STATE REP. BY
619
INSPECTOR OF POLICE [CHELAMESWAR, J.]
the address of Willes, J. to the Jury in Mulcahy v. R. are A
often quoted in the decisions of this Court. The passage
in Russell on Crimes referred to by Jagannatha Shetty,
J. in Kehar Singh case (SCC at p. 731, para 271) is
quite apposite:
"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,
B
nor in inciting others to do them, but in the forming of
the scheme or agreement between the parties. C
Agreement is essential. Mere knowledge, or even
discussion, of the plan is not, per se, enough."
This passage brings out the legal position succinctly."
15. Therefore, if law permits the use of the content of D
either the evidence given at trial or the statement made under
Section 164 Cr.P.C. by PW64, he could be tried for an offence
punishable under Section 1208 .IPC. Because, on his own
admission, PW64 agreed to kill Vijayan for a price and E
acceptea money from A2 towards the part payment of such
price and also drafted A3 into the conspiracy.
16. If it is legally possible to try PW64 for such an offence,
the further question would be whether he could be tried along
F
with the other accused facing trial for the charge of murder of
Vijayan. We have already noticed that Section 223(d) of
Cr.P.C. authorizes the trial of "persons accused of different
offences committed in the course of the same transaction".
17. That leads us to a further question whether the offence G
said to have been committed by PW64 and the offence for
which the appellant and other accused in Sessions Case
No. 73 of 2009 are being tried were "committed in the course
of the same transaction". The High Court examined this H
620
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A question and came to the conclusion that there were three
different conspiracies; (i) between A-2 and PW64, (ii)
between PW64 and A-3, (iii) between A-2 and A-3 to A-7 and
recorded a conclusion;
B
''Therefore, I hold that the conspiracies committed by A2
and the 2nd respondenUP.W. 64 and the conspiracy
between the 2nd respondenUP.W. 64 and A3 have got
nothing to do with the subsequent conspiracy hatched
c
between A2, A3 and the rest of the accused."
18. After such a conclusion, the High Court placing
reliance on Balbir v. State of Haryana & Another (2000) 1
SCC 285 and another judgment of the Gauhati High Court in
M.L. Sharma & Others v. Centra/Bureau of Investigation
D 2008 Crl. L.J. 1725 reached the conclusion that PW64 could
not be tried together with the other accused already facing
trial in Sessions Case No. 73 of 2009, as the said three
conspiracies "do not form part of the same transaction"4
E
19. We find it difficult to agree with the conclusion
recorded by the High Court. In our opinion, the High Court
misread the principle laid down in Ba/bir case.
20. The legal position regarding the joint trial of various
accused fell for the consideration of this Court in State of
F Andhra Pradesh v. Cheemalapati Ganeswara Rao &
Another, AIR 1963 SC 1850.
21. The facts, the question and the decision (insofar as
G
• From these judgments, it is crystal clear that there is a vast difference
between the expression in respect of the same subject-matter and in the
course of the sa• 'e transaction. Here, again, as I have already concluded,
though all the co. 1spiracies relate to the same subject-matter, they do not
form part of the same transaction.
Therefore, I have no hesitation to hold
that in the present case, the 2nd respondenVP.W. 64 cannot be tried together
H with the accused, who are presently facing the prosecution.
R. DINESHKUMAR@ DEENA v. STATE REP. BY
621
INSPECTOR OF POLICE [CHELAMESWAR, J.]
they are relevant for our purpose) in the case of Ganeswara A
Rao are as follows. Two of the respondents therein alorig with
two others were tried for various offences under the Indian
Penal Code.
Both the respondents were convicted for
offences under Section 1208 and 409 of the IPC.
(i) The High Court set aside the convictions on various
grounds; one of them being that the joint trial of two or more
persons in respect of different offences committed by each
B
of them is illegal. According to the Andhra Pradesh High
Court, Section 2395 (of the Old Cr.P.C. corresponding to C
Section 223 of the Code of Criminal Procedure, 1973) did
not permit such a procedure.
(ii) Examining the correctness of the conclusion recorded
by the Andhra Pradesh High Court, this Court held:-
D
" .... .The question is whether for the purposes of s. 239(d)
it is necessary to ascertain any thing more than this that
the different offences were committed in the course of
the same transaction or whether it must further be E
ascertained whether the acts are intrinsically connected
with one another. Under s. 235(1) what has to be
ascertained is whether the offences arise out of acts so
connected together as to form the same transaction, but
the words "so connected together as to form" are not F
repeated after the words "same transaction" in s. 239.
What has to be ascertained then is whether these words
are also to be read in all the clauses of s. 239 which
refer to the same transaction. Section 235(1), while
providing for the joint trial for more than one offences, G
5 Section 220(1) and 223(d) employ the clause "the same transaction''. It
may be mentioned here that while Section 220(1) of the Criminal Procedure
Code, 1973 deals with the joint trial of more than one offence committed by
the same person, Section 223 deals with the joint trial of different offences H
committed by different persons under certain circumstances.
622
A
B
c
D
E
F
G
SUPREME COURT REPORTS
[2015) 5 S.C.R.
indicates that there must be connection between
the acts and the transaction. According to this
provision there must thus be a connection between
a series of acts before, they could be regarded as
forming the same transaction. What is meant by
"same transaction" is not defined anywhere in the Code.
Indeed, it would always be difficult to define precisely
what the expression means. Whether a transaction can
be regarded as the same would necessarily depend
upon the particular facts of each case and it seems
to us to be a difficult task to undertake a definition of
. that which the Legislature has deliberately left undefined.
We have not come across a single decision of any
Court which has embarked upon the difficult task of
defining the expression. But it is generally thought that
where there is proximity of time or place or unity
of purpose and design or continuity of action in
respect of a series of acts, it may be possible to
infer that they form part of the same transaction.
It is, however, not necessary that every one of these
elements should co-exist for a transaction to be
regarded as the same. But if several acts committed by
a person show a unity of purpose or design that would
be a strong circumstance to indicate that those acts
form part of the same transaction. The connection
between a series of acts seems to us to be an essential
ingredient for those acts to constitute the same
transaction and, therefore, the mere absence of the
words "so connected together as to form" in cl. (a), (c)
and (d) of s. 239 would make little difference.
(iii) This Court after taking note. of the fact that the clause
"same transaction" is not defined under the Cr.P.C. opined that
the meaning of the clause should depend upon the facts of
H each case. However, this Court indicated that where there is
R. DINESHKUMAR@ DEENA v. STATE REP. BY
623
INSPECTOR OF POLICE [CHl:LAMESWAR, J.]
"
a proximity of time or place or unity of purpose and design A
' ,,
or continuity of action in resplt'ct of a series of acts, it is
possible to infer that they form part of the same transaction.
This Court also cautioned that every one of the abovementioned elements need not co-exist for a transaction to be
regarded as the "same transaction".
B
(iv) This Court approved a decision of Allahabad High
Court in T.B. Mukerji v. The State, AIR 1954 All 501 insofar
as it dealt with the general principles of the joint and separate
trials ard held as follows:
C
"No doubt, as has been rightly pointed out in this case,
separate trial is the normal rule and joint trial is an
exception. But while this principle is easy to appreciate
and follow where one person alone is the accused and D
the interaction or intervention of the acts of more persons
than one does not come in, it would, where the same
act is committed by several persons, be not only
inconvenient but injudicious to try all the several persons
separately. This would lead to unnecessary multiplicity E
of trials involving avoidable inconvenience to the
witnesses and avoidable expenditure of public time and
money.
No corresponding advantage can be gained
by the accused persons by following the procedure of
separate trials. Where, however, several offences are
F
alleged to have been committed by several accused
persons it may be more reasonable to follow the normal
rule of separate trials.
But here, again, if those
offences are alleged not to be wholly unconnected
but as forming part of the same transaction the G
only consideration that will jU'stify separate trials
would be the embarrassmen~ or difficulty caused
to the accused persons in defending themselves.
We entirely agree with the High Court that joint trial H
624
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
should be founded on some principle."
[emphasis supplied]
(v) This Court recorded a final conclusion that the Andhra
Pradesh High Court was wrong in setting aside the conviction
B on the ground that there was a misjoinder of the charges and
held;
"33. .. . Merely because the accused persons are
charged with a large number of offences and convicted
C
at the trial the conviction cannot be set aside by the
appellate court unless it in fact came to the conclusion
that the accused persons were embarrassed in their
defence with the result ihc::t il-IE:1t:i wc:s a failure of justice.
For all these reasons we cannot accept the argument
D
of learned counsel on the ground of misjoinder of
charges and multiplicity of charges."
22. According to us, the principle enunciated in
Ganeswara Rao case is that where several persons are
E alleged to have committed several separate offences, which,
however, are not wholly unconnected, then there may be
a joint trial unless such joint trial is likely to cause either.
embarrassment or difficulty to the accused in defending
F
themselves.
23. Coming to Balbircase (supra), the facts are as follows.
One Om Prakash was killed. On the basis of a report made
to the police by the nephew of the deceased accusing two
brothers Balbir and Rajinder to be the assailants, police
G registered a crime and investigated. On the basis of
investigation, eventually, the police filed a chargesheet under
Section 302 IPC against one Guria but not against the two
accused mentioned in the FIR. The nephew of the deceased
lodged a private complaint before the magistrate accusing
H Balbir and Rajinder of the murder of On:i Prakash. It was
R. DINESHKUMAR@ DEENA v. STATE REP. BY
625
INSPECTOR OF POLICE [CHELAMESWAR, J.]
alleged therein that the police had deliberately suppressed A
the case against the real culprits and filed a chargesheet
against Guria. As a consequence, two sessions cases were
registered and tried separately. Guria was acquitted and his
acquittal became final. Whereas, Balbir and Rajinder were
convicted by the Sessions Court. Their conviction was B
confirmed by the High Court. It was argued before this Court
by the convicts that such separate trials were uncalled for and
both the cases must have been consolidated and tried jointly
invoking Section 223(a) of the Cr.P.C. This Court rejected the
submission:
C
"16.
.. ... for both versions here are diametrically
divergent without anything in common except that the
murdered person was the same. In such cases the most
appropriate procedure to be followed by a Sessions 0
Judge should be the same as followed in the present
case i.e. the two trials were separately conducted one
after the other by the same court before the same Judge
and judgments in both cases were separately
pronounced on the same day. No doubt the Sessions E
Judge should take care that he would confine his
judgment in one case only to the evidence adduced in
that particular case."
Both Guria on one hand and Balbir and Rajinder on the
other hand were independently accused of murdering Om
F
Prakash. It does not appear to be either the case of the police
or the private complainant that all three accused acted in
concert and killed Om Prakash. Therefore, this Court held
that the application of Section 223(a) is clearly ruled out. In
the process, this Court referred to Ganeswara Rao case and G
extracted certain passages.
24. In our opinion, the reference to Ganeswara Rao case
in Balbircase is not really necessary. Ganeswara Rao case
was a case falling under Section 223(d) (Section 239 of old
H
626
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A Cr.P.C.) which contemplates different offences committed by
different persons. In Balbircase, the offence is only one. It is
the murder of Om Prakash. Different persons are accused
not collectively but individually of having committed the murder
of Om Prakash. Therefore, Section 223(d) would have no
B application to Balbircase.
25. At any rate, the reliance placed on Balbir case by the
High Court in the case on hand, in our opinion, is wholly
misplaced. It is not a case of either the prosecution or PW64
C that the murder of Vijayan was committed by the persons other
than the accused facing the trial. PW64 only gave evidence
as to the genesis of the conspiracy to kill Vijayan of which
various accused and also l-'\IV64 ~re pait!es at different points
of time Going by the test laid down in Ganeswara Rao case,
0
assuming the correctness of the conclusion recorded by the
High Court that there are three different conspiracies between
different parties as explained earlier, it cannot be said that
these offences are so wholly unconnected that they cannot be
tried together. Then the only other consideration which might
E preclude a joint trial is that such a joint trial would either cause
embarrassment or difficulty to the accused in defending
themselves.
26. It is not the case of the accused that they would have
some difficulty in defending themselves if PW64 is also tried
F alongwith them for the offence of conspiracy to kill Vijayan.
On the other hand, it is the case of the accused that not trying
PW64 along with them would.cause prejudice to their defence.
27. Therefore, in our view, the High Court is clearly wrong
in concluding that PW64 could not be tried alongwith the other
G accused under Sessions Case No.73 of2009. But that does
not solve the problem. The question whether the other
requirements of Section 319 are satisfied warranting the
summoning of PW64 under Section 319 of Cr.PC is still
required to be examined.
H
R. DINESHKUMAR@ DEENA v. STATE REP. BY
627
INSPECTOR OF POLICE [CHELAMESWAR, J.]
28.