SUPREME COURT OF INDIA
K.R. Purushothaman
Vs
State of Kerala
Criminal Appeal No.495 of 2004
(H.K.Sema and P.P.Naolekar)
25/10/2005
P.P. NAOLEKAR, J.
1. This appeal has been filed against the common judgment of the Kerala
High Court where the appeal of appellant (A-2) against his conviction was
dismissed. A-2 was the Asstt. Commissioner of Tripunithura group of the Cochin
Devaswom Board and convicted by the common judgment passed by the Enquiry
Commissioner and Special Judge, Thrissur appointed under the Prevention of Corruption Act, 1988.
2. The appellant was convicted for R.I. for two years and a fine a Rs.10,00/-
and R.I. for two years and a fine of Rs.5000/- and in default R.I. for three
months under Sections 13(1) (c) & (d) of the Act respectively, along with
Section 13(2) and R.I. for one year under Sections 403 IPC and 477-A I.P.C.,
each. No separate sentence was awarded under Section 120B of the IPC.
3. The prosecution case, in brief, is that Chottanikkara Bhagvathy Temple at
Chottanikkara is administered by Cochim Davaswom Board. Ornament
"Golaka" was used in the temple on certain special ceremonial
occasions and the other "Golaka" was used day-to-day. The Temple
Board found that Golaka, which was being used throughout the year, was rendered
unfit for adorning the deity and, therefore, a decision was taken by the Board
on 13.4.82 to make a new Golaka and for the said purpose, sanction was accorded
to use 3 Kg. and 499 Gm. of gold from the gold stock available with the Devaswom.
The Devaswom had received back a large quantity of gold, which had been
invested in gold bonds, from the Government and it was in their custody. Out of
that, aforesaid quantity of gold was to be used for the purposes of making the
ornament. It was subsequently found that 3.499 Kg. was not sufficient and,
therefore, the Devaswom Board by its order dated 4.9.86 granted permission to
utilize 1.5 Kg. of gold more from the Nadavaravu (offerings in the form of
ornaments and gold coins by devotees), by converting them into bars and sheets.
In pursuance of the order, additional quantity of 1 Kg. of gold consisting of
150 pieces of gold jewellery and coins, was entrusted to A-3, who died during
the pendency of the proceedings. The Board has asked for the quotations to
prepare the ornament and the work was ultimately entrusted to the 4th accused
by the Devaswom Board on 20.7.87. As per the quotation the wastage in making
the ornament was 10 Gm. of the gold for 1 Kg. By order dated 20.2.87 (Ex.2b)
the work of making the Golaka was directed to be supervised by the Assistant
Commissioner of the Tripunithura groups, K.S. Chakrapani Marar, J.S.,D.Cs
Office., T.S. Rajan Devaswom Officer, and other officials. The gold weighing
4.499 Kg., taken from the gold bond, was taken to Madras for converting into
the gold sheets. The purity was tested at Elite Jwellery, Thrissur, to be
99.5%. This gold was converted into gold sheets and they were cut, and a
portion having weight 2.469 Kg. was entrusted to A-3. The balance of gold sheet,
i.e., 1.030 Kg. along with 1 Kg. of gold from offerings (Nadavaravu) was
converted into two gold bars. These two bars were late on converted into gold
sheets. The gold sheets were used to make different portions of the body of
Golaka. After cutting these sheets to the required size, the pieces left from
the sheet, weighing 1.147 Kg., and the bits of gold weighing 13 GM. were again
melted to be converted into gold bars, weighing 1.149 Kg. This was done before
the accused joined as Assistant Commissioner.
4. A-2 joined duty as Asstt. Commissioner of the Deveasowm Board on 1/2-5-1988.
On 10.9.88 the gold bar was taken by accused - appellant, along with A-3 and
A-4 to A.K.A. Metals at Irinjalakuda for converting the same into gold sheets.
But when the attempt was made to convert the bars into sheets, cracks appeared
on the side of the bar due to impurity of the gold. On 15.9.88, the
accused-appellant had sent a report to the Board and sought permission to take
the gold bar to Coimbatore and vide resolution dated 20.9.88, the Board
authorized A-3 to take the gold bar to Coimbatore for converting it into gold
sheets and accordingly the gold bar was taken to Coimbatore.
5. When the gold bar was melted for converting it into sheets, the quantity of
pure gold was found to be only 919.500 Gm. 42 Gm. of copper was added to it in
order to conform the same to the prescribed Government standard, and the gold
was converted into gold sheets, and these sheets were used for making the two
hands of the Golaka, wires, pinheads, nails, and for soldering purposes. While
making the Golaka the gold was several times melted and converted into bars
and, thereafter, to sheets. The total weight of the gold utilized for making
the Golaka was 4.499 Kg. which included the gold supplied from 150 pieces of
ornaments and coins. After completion of the work, it was found that the weight
of the ornament Golaka was 4.209 Kg. Since 42 Gm. of copper was used for making
the Golaka, the total wastage assessed as 332 Gm. A-1, the Commissioner made
certain inquiries about the loss of gold during the process of making the
ornament Golaka from some dealers at Thrissur, and was convinced that there was
a possibility of wastage occurring @ 50 Milligrams per 1 Kg. and since the gold
had been several times melted and converted into bars and sheets, felt that
wastage of 332 Gm. was quite reasonable and, accordingly sent a report to the
Devaswom Board, which was approved and accepted by the Board.
6. Later on, the Local Fund Audit, audited the accounts of the Devaswom Board
and submitted reports before the High Court of Kerala. The first report dealt
with details of loss of gold sustained, to the illegalities in the work, and it
was pointed out that wastage of 332 Gm. of gold was un-reasonable; whereas the second
report had named the persons responsible for the loss.
7. Chargesheet was filed against A1 - the Commissioner, Devaswom Board; A-2
Asstt. Commissioner, Devaswom Board; A-3 Officer of the Devaswom Board; and A-4
the maker of the Golaka. The trial court acquitted A-1 and A-4, but convicted
A-2 along with A-3, who died during the proceedings.
8. The Appeal was taken to the High Court by A-2. The High Court, while
considering the case of A-2, recorded a finding that though three was nothing
which indicated that the accused-appellant was a party to the attempts of
melting the gold at Chottanikkara and Tripunithura, yet it is possible to
conclude that he knew about it. It has been inferred by the High Court that
gold when was carried to Irinjalakuda for the purpose of converting the gold
bars into sheets where it was revealed that the gold was impure and it was not
possible to convert the same into gold sheets, A-2 had not raised any
objections against the same.
9. The High Court has found A-2 guilty only on the basis that he has conspired
with A-3 dishonestly or fraudulently, to misappropriate the pure gold.
10. The conviction of the appellant is based on the conspiracy which is alleged
to have been entered into between the appellant and accused No.3. We shall
advert to the law of conspiracy, with its definition, the essential features
and required proof.
11. Section 120A of I.P.C. defines 'criminal conspiracy'. According to this
Section when two or more persons agree to do, or cause to be done (i) an illegal
act, or (ii) an act which is not illegal by illegal means, such an agreement is
designed a criminal conspiracy. In Major EG Barsay vs. State of Bombay,
Subba Rao, J., speaking for the Court has said: "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."
12. In State through Superintendent of Police, CBI/SIT vs. Nalini and Ors. -
1999 (4) JT 106 it is observed by SSM Quadri J. at paragraph 677:
"In reaching the stage of meeting of minds, two or more persons share
information about doing an illegal means. This is the first stage where each is
said to have knowledge of a plan for committing an illegal act or a legal act
by illegal means. Among those sharing the information some or all may form an
intention to do an illegal act or a legal act by illegal means. Those who do
form the requisite intention would be parties to the agreement and would be
conspirators but those who drop out cannot be roped in as collaborators on the
basis of mere knowledge unless they commit acts or omissions from which a
guilty common intention can be inferred. It is not necessary that all the
conspirators should participate from the inception to the end of the
conspiracy; some may join the conspiracy after the time when such intention was
first entertained by any one of them and some others may quit from the
conspiracy. All of them cannot but be treated as conspirators. Where in
pursuance of the agreement the conspirators commit offences individually or
adopt illegal means to do a legal act which has a nexus to the object of
conspiracy, all of them will be liable for such offences even if some of them
have not actively participated in the commission of those offences." *
13. To constitute a conspiracy, meeting of mind of two or more persons for
doing an illegal act or an act by illegal means is the first and primary
condition and it is not necessary that all the conspirators must know each and
every detail of conspiracy. Neither it is necessary that every one of the
conspirators takes active part in the commission of each and every
conspiratorial Acts. The agreement amongst the conspirators can be inferred by
necessary implications. In most of the cases, the conspiracies are proved by
the circumstantial evidence, as the conspiracy is seldom an open affair. The
existence of conspiracy and its objects are usually deducted from the
circumstances of the case and the conduct of the accused involved in the
conspiracy. While appreciating the evidence of the conspiracy, it is incumbent
on the Court to keep in mind the well-known rule governing circumstantial
evidence viz., each and every incriminating circumstance must be clearly
established by reliable evidence and the circumstances proved must form a chain
of events from which the only irresistible conclusion about the guilt of the
accused can be safely drawn, and no other hypothesis against the guilt is
possible. The criminal conspiracy is an independent offence in Indian Penal
Code. The unlawful agreement is sine quo non for constituting offence under
Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme
or adjustment between two or more persons which may be express or implied or
partly express and partly implied. Mere knowledge, even discussion, of the Plan
would not per se constitute conspiracy. The offence of conspiracy shall
continue till the termination of agreement.
14. The suspicion can not take the place of a legal proof and prosecution would
be required to prove each and every circumstance in the chain of circumstances
so as to complete the chain. It is true that in most of the cases, it is not
possible to prove the agreement between the conspirators by direct evidence but
the same can be inferred from the circumstances giving rise to conclusive or
irresistible inference of an agreement between two or more persons to commit an
offence. It is held in Noor Mohd. vs. State of Maharashtra, that:
"...in most cases proof of conspiracy is largely inferential though the
inference must be founded on solid facts. Surrounding circumstances and
antecedent and subsequent conduct, among other factors constitute relevant
material." *
15. It is cumulative effect of the proved circumstances which should be taken
into account in determining the guilt of the accused. Of-course, each one of
the circumstances should be proved beyond reasonable doubt. The acts or conduct
of the parties must be conscious and clear enough to infer their concurrence as
to the common design and its execution. While speaking for the Bench it is held
by P. Venkaratama Reddy J. In State (NCT of Delhi) vs. Navjot Sandhu @ Afsan
Guru, 2005 (7) JT 1, (P.63) as follows:
"We do not think that the theory of agency can be extended thus far,
that is to say, to find all the conspirators guilty of the actual offences
committed in execution of the common design even if such offences were
ultimately committed by some of them, without the participation of others. We
are of the view that those who committed the offences pursuant to the
conspiracy by indulging in various overt acts will be individually liable for
those offences in addition to being liable for criminal conspiracy; but, the
non-participant conspirators cannot be found guilty of the offence or offences
committed by the other conspirators. There is hardly any scope for the
application of the principle of agency in order to find the conspirators guilty
of a substantive offence not committed by them. Criminal offences and
punishments therefore are governed by statute. The offender will be liable only
if he comes within the plain terms of the penal statute. Criminal liability for
an offence cannot be fastened by way of analogy or by extension of a common law
principle." *
16. We shall now proceed to examine the evidence placed on record and reasoning
adopted by the High Court for finding the accused/appellant guilty of the
offence of conspiracy on the basis of the principle laid down by this Court in
various authorities.
12. The High Court completely missed the fact that on 15.9.88, immediately
after it was noticed that the gold was impure and it could not be converted
into sheets, A-2 had sent a report to the Board, sought permission of the Board
to take the gold to Coimbatore. It can very safely be presumed that when the
gold was required to be taken to Coimbatore, the matter must have been reported
to the Board that the gold was impure and the same was required to be taken to
Coimbatore. High Court has also failed to notice that when the gold sheet was
converted into gold bar, before the accused-appellant joined the Board, it
weighed 1.149 Kg. and when this gold bar was melted, after the
accused-appellant had joined duty, the gold was found only to be 919.500 Gm.
Thus, before the accused-appellant joined as Asst. Commissioner, there was a
shortage of 230 Gm. of the gold in the gold bar prepared, which was detected
when it was converted into gold sheet. Shortage of pure gold was on account of
impurity in the gold bar which was prepared when the accused-appellant had not
even joined the services of the Board. The High Court has also recorded a
finding in paragraph 21 onwards of the judgment that the bond gold weighing
2.469 Kg. and Nadavaravu (offerings) of 1 Kg. of gold was handed over to A-3, which
was in the form of ornaments and coins. The purity of bond gold was ascertained
and certified in Exh.P.1 but the purity of the Nadavaravu, was not ascertained
at all and no satisfactory explanation, whatsoever, is offered by any witness
or the prosecution as to how and why 1 Kg. of the gold was handed over to A-3
and permitted to be used in making the Golaka without ascertaining its purity,
as was done in the case of bond gold. The High Court further held that the
entire gold was kept in the double locker system under the control of A-3 at
Chottanikkara and A-3 was keeping both the keys of the double locker with him.
There is convincing evidence to show that the entire gold was kept in the
exclusive custody of A-3. A-3 used to release the gold necessary for making of
Golaka every morning and used to keep them back by the end of the day and the
craftsman A-4 was dealing with the gold everyday. The above finding of the High
Court clearly establishes that it was A-3 who was entrusted with the entire
gold and he was keeping the custody of the same. A-2 had nothing to do with it,
except he being the Asstt. Commissioner of the Devaswom Board, Cochin. He was
overall in-charge of the work carried on at Chottanikkara, along with the other
duties which he was required to perform in the other shrines, which were coming
under his jurisdiction. The High Court has also failed to notice after
recording the finding, that 1 Kg. of gold of the Nadavaravu which was mixed up
with pure bond gold, the purity was not assessed and it cannot be said with
certainty that pure gold delivered was 4.499 Kg., to ascertain the loss of pure
gold, for which the accused persons were charged. It is a matter of common
knowledge that ornaments contain and require mixing of other metals in gold, and
when the gold ornaments weighing about 1 Kg. were given, it can safely be
assumed that they contained, along with gold, impurities of other metals, and
thus was not 1 Kg. of pure gold.
18. From the findings arrived at by the High Court that it was A-3 who was
entrusted with the gold by the Devaswom Board, and who was looking after the
affairs of making the ornament Golaka, simply because accused-appellant had
accompanied him to Coimbatore, it cannot be inferred that there was an
agreement entered into between them to misappropriate the gold. To constitute a
conspiracy, agreement between two or more persons for doing an illegal act, or
an act by illegal means, is a sine qua non. Although the agreement among the
conspirators can be inferred by necessary implication, the inference can only
be drawn on the parameters in the manner of proved facts, in the nature of
circumstantial evidence. Whatever be the incriminating circumstance, it must be
clearly established by reliable evidence and they must form the full chain
whereby a conclusion about the guilt of the accused can be safely drawn. Even
if we hold that at some point of time, the accused-appellant had some knowledge
or suspicion about A-3 indulging in fraudulent misappropriation of gold,
entrusted to A-3, in the absence of some positive evidence indicating agreement
to that effect, conspiracy could not be inferred. On the findings itself
arrived at by the High Court, we cannot hold that the accused-appellant was the
conspirator to misappropriate the gold, with A-3.
19. On scrutiny of the entire facts led by the prosecution, the charge of
conspiracy cannot stand as there is no link to show that the conspirators
agreed to misappropriate the gold while the gold ornament was being prepared.
20. The accused-appellant was convicted under Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. To constitute an
offence under clause (c) of Section 13 (1) of the Act, it is necessary for the
prosecution to prove that the accused has dishonestly or fraudulently
misappropriated any property entrusted to him or under his control as a public
servant or allows any other person to do so or converts that property for his
own use. The entrustment of the property or the control of the property is a
necessary ingredient of Section 13(1)(c). On the findings arrived at by the
High Court, it is obvious that the property was neither entrusted nor was under
the control of the accused-appellant and thus the accused-appellant could not
have been convicted under the Section. #
21. To attract the provisions of Section 13 (1)(d) of the Prevention of
Corruption Act, public servant should obtain for himself of for any other
person any valuable thing or pecuniary advantage by corrupt or illegal means or
by abusing his position as a public servant. Therefore, for convicting a person
under the provisions of Section 13(1)(d) of the Prevention
of Corruption Act 1988, there must be evidence on record that the
accused has obtained for himself or for any other person, any valuable thing or
pecuniary advantage by corrupt or illegal means or by abusing his position as a
public servant obtained for himself, or for any person, or obtain for any
person, any valuable thing, or pecuniary advantage without any public interest.
# What we find in the present case is that there is no evidence on record
to prove these facts that the accused-appellant had obtained for himself or for
any other person any valuable thing or pecuniary advantage. We may clarify that
the charge of conspiracy being not proved under Section 120B I.P.C., the
accused appellant could not be held responsible for the act done by A-3. The
prosecution has failed to prove that he has obtained for himself or for any
other person any valuable thing or pecuniary advantage. Similarly, we do not
fin any evidence on record to convict accused-appellant under Sections 403,
477-A I.P.C.
22. For the reasons aforesaid, the appeal is allowed. The Judgment of the High
Court is set aside.