Conspiracy; C.H. Ashokan Vs. State of Kerala [Kerala High Court, 13-07-2012]

Penal Code, 1860 – Ss. 143, 147, 148, 115, 118, 120-B r/w 149 –  Bail Application – Criminal Conspiracy – Petitioner submits that from the mere fact that one had used threatening words in the public speech or that the said person (accused) was seen with other leaders or their party workers at a particular place, the criminal conspiracy cannot be inferred. Held, It is not proper for this Court to make any observation or finding regarding the same at this stage. The role of each of the accused persons or the degree of complicity with regard to the conspiracy, preparations, abetment etc may vary from each other. The role of one accused may not be identical to that of the other. No custodial interrogation was sought for by the Investigating Officer in this case during the first period of remand. Considering the period of detention and the further fact that he was granted bail in the main case, the petitioner is granted bail.

# Criminal Conspiracy


IN THE HIGH COURT OF KERALA AT ERNAKULAM

N.K. BALAKRISHNAN, J.

B.A. No: 4752 of 2012

CMP.4140/2012 of J.M.F.C.,VADAKARA CRIME NO:233/2012 OF CHOMBALA POLICE STATION, KOZHIKODE

Dated this the 13th day of July, 2012

FOR ACCUSED(S)/ACCUSED NO.1: BY ADVS.SRI.M.K.DAMODARAN (SR.), SRI.ALAN PAPALI, SRI.SOJAN MICHEAL, SRI.GILBERT GEORGE CORREYA; FOR COMPLAINANT(S)/COMPLAINANT : BY ADVOCATE GENERAL SRI.K.P.DANDAPANI

O R D E R

The petitioner is the 1st accused in Crime No:233/2012 of Chombala Police Station, Kozhikode District. The offences alleged against this petitioner and others are under

# Sections 143, 147, 148, 115, 118, 120-B r/w 149 of IPC.

The petitioner was arrested in connection with this case on 07.06.2012. Since then he has been in judicial custody.

2. The learned senior counsel appearing for the petitioner, Sri.Gopalakrishna Kurup and the learned Advocate General have been heard.

3. It is alleged that Mr. T.P. Chandrasekharan, who was a local leader of the C.P.I.(M), along with others, left C.P.I.(M) and formed a new party called ‘Revolutionary Marxist Party’ (R.M.P). As some persons who originally belonged to C.P.I.(M) left that party and joined R.M.P., the petitioner and other leaders hatched a criminal conspiracy to murder Mr.T.P.Chandrasekharan and for that purpose, preparations were made in pursuance of that conspiracy. According to the prosecution, that conspiracy was hatched in September 2009 from the house of A11 at Mahe and also from Onchiyam Area Committee of C.P.I.(M) situated at Nadapuram Road and for that purpose, according to the prosecution, a team which included A4 to A10, A12 and A13 was arranged. A6 was stated to be the leader of that team. Mr.T.P. Chandrasekharan was murdered on 04.05.2012 at 10.15 p.m. at a place called ‘Vallikkad’. Crime No:433/2012 was registered by Vadakara Police with regard to that murder case. When some of the accused in that case were arrested and questioned they were stated to have told about the conspiracy which was hatched in the year 2009. Though the object of that conspiracy could not be achieved, the prosecution contends that this petitioner and other accused persons committed the offence of criminal conspiracy and other offences as mentioned above.

4. The learned senior counsel appearing for the petitioner submits that this crime (Crime No:233/2012 of Chombala Police Station) was registered only as dictated or desired by a ruling political party. It is further submitted that this petitioner, who was arrested in connection with the main case (Crime No:433/2012 of Vadakara Police Station), was granted bail by this Court as per Order dated 02.07.2012 in B.A. No:3632/2012 and so further incarceration may not be had.

5. The learned Advocate General would submit that even though the object of the criminal conspiracy of 2009 could not be accomplished, still prosecution can be had for the offence under section 120-B. In order to constitute a criminal conspiracy there must be an agreement between two or more persons, the agreement must relate to doing or causing to be done either an illegal act or an act which is not illegal in itself but is done by illegal means. The existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. The essence of a criminal conspiracy is complete when the unlawful combination is framed and that no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. In support of these submissions, the learned Advocate General relied upon the decisions of the apex Court in

# Noor Mohammad Mohd. Yusuf Momin V. State of Maharashtra 1970 (1) SCC 696

# Yogesh Alias Sachin Jagdish Joshi V. State of Maharashtra (2008) 10 SCC 394

and

# Chamanlal and Others V. State of Punjab and another (2009) 11 SCC 721

But at the same time the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn.

6. The learned senior counsel appearing for the petitioner does not dispute the fact that an offence of conspiracy is a substantive offence and that it renders mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement. But the learned counsel submits that the petitioner has been arrayed as accused in the aforesaid crime solely based on the statement alleged to have been given by one of the co-accused, who is described as a co- conspirator. It is further stated that since the petitioner is a local leader of the party, there was nothing unusual in the petitioner having discussions with other leaders or party members and so simply because the petitioner was seen talking with leaders and other party workers, it cannot be said that the said talk or discussion was actually part of the criminal conspiracy to cause the murder of Mr.T.P.Chandrasekharan.

7. The prosecution relies upon the statement given by one of the co-accused in this case who is also one of the co-accused in Crime No:433/2012 of Vadakara Police Station. The Case Diary has been placed before me for perusal. I have gone through the marked portions of the Case Diary and also other statements. The Prosecution relies on the statements of CWs 1 to 4. According to the prosecution, the conspiracy was hatched in September, 2009 from Onchiyam Area Committee Office of C.P.I.(M) and accused nos. 4 to 10 and 12 were entrusted to execute the murder. The further case is that in October-November, 2009, some persons had visited Onchiyam, Orkateri etc carrying deadly weapons in those vehicles. According to the prosecution, they were in search of Mr.T.P.Chandrasekharan who was to be murdered as agreed upon.

8. The learned senior counsel for the petitioner submits that the alleged statements of the witnesses which are purely based on assumptions and the statements of the co-accused are not sufficient to hold that this petitioner was a party to the criminal conspiracy. Copies of the statements of CWs 1 to 4 would show that the witnesses had seen this petitioner and other persons (names of those persons are mentioned in the statements) discussing from the verandah of Onchiyam Area Committe Office of C.P.I.(M). It is also stated that those persons had reached there in a particular vehicle. It is further alleged that this petitioner and others had made threatening statements in the speeches made by them that “days of Mr.T.P.Chandrasekharan are numbered”.

9. The learned senior counsel for the petitioner submits that from the mere fact that one had used threatening words in the public speech or that the said person (accused) was seen with other leaders or their party workers at a particular place, the criminal conspiracy cannot be inferred. It is not proper for this Court to make any observation or finding regarding the same at this stage. The role of each of the accused persons or the degree of complicity with regard to the conspiracy, preparations, abetment etc may vary from each other. The role of one accused may not be identical to that of the other.

10. It is pointed out that this petitioner was arrested on 15.05.2012 in the main case and he has been in custody for almost 60 days, though in this case the custody has been since 07.06.2012. It is pointed out that no custodial interrogation was sought for by the Investigating Officer in this case during the first period of remand.

11. Considering the period of detention and the further fact that he was granted bail in the main case (Crime No:433/2012 of Vadakara Police Station), the petitioner is granted bail subject to the following conditions.

(i) The accused shall execute a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. If in case the Magistrate has any doubt about the genuineness or correctness of the tax receipts produced by the sureties, the learned Magistrate can insist for production of the attested photo copies of the original title deeds of the sureties.

(ii) The accused shall make himself available for interrogation by the Investigating Officer and that he should appear before the Investigating Officer on all Mondays and Fridays between 9.30 AM to 11.30 AM until further orders.

(iii) The accused shall produce his original passport before the learned Magistrate. If he is not having any valid passport, he should file an affidavit regarding the same before the Magistrate.

(iv) The accused will also file an affidavit that he will abide by all the conditions as mentioned above and that he will not commit any offence similar to the offence involved in this case and that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(v) The accused shall not directly or indirectly contact any of the other accused involved in this case or the witnesses in this case.

(vi) The accused shall not leave the State of Kerala without the prior permission of the Court.

(vii) The learned Magistrate will also ensure the identity of the sureties by insisting production of electoral photo identity cards/Driving licence etc.

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