Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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CRIMINAL APPEAL No. 1066 of 2010
1. This appeal by accused no. 31, challenges the judgment of
the High Court of Madhya Pradesh in Criminal Appeal No. 213 of
2006 confirming the conviction of the Appellant imposed by the
Additional Sessions Judge, Guna for offences under Sections 201,
380, 435, 457 and 477 read with Section 120B of the Indian Penal
Code, 1860. The High Court also confirmed the sentence of
rigorous imprisonment for four years along with a fine of Rs. 500
under Sections 380, 435, 457 of the IPC and rigorous
imprisonment of two years along with a fine of Rs. 500 under
1 hereinafter referred to as Appellant.
Page 2 of 19
Section 201 IPC. However, the sentence under Section 477 IPC
was reduced by the High Court from rigorous imprisonment for six
years to four years.
2.1 Three accused, employees of Guna Branch of Central Bank
of India, were prosecuted for the above-referred offences of theft
(of Rs. Six Lakhs from the safe and strong room of the Bank),
house-trespass, destruction of valuable security, and other
offences. While the main accused, Pradeep Saxena (hereinafter
referred to as ‘A-1’) and Vinod (hereinafter referred to as ‘A-2’),
were convicted and sentenced concurrently given the oral and
documentary evidence, as per which the money is proved to have
been recovered from their possession, the Appellant (A-3) was
convicted and sentenced for the very same offences only with the
aid of Section 120B of the IPC.
2.2 The enquiry against the appellant is therefore confined to the
existence or the proof of criminal conspiracy between him and the
other accused. The charge of conspiracy against the appellant
arose because, as Head Cashier, he was to be in the custody of one
of the keys of the dual locker system maintained by the Bank for
the safe custody of cash and valuable security.
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3. The case of the prosecution is that, upon transfer of the
existing Branch Manager Shri R.K. Makore, Senior Manager
Shri K.R. Lydia (hereinafter referred to as ‘PW-4’) was given the
additional charge as Manager-in-Charge. As he was on leave for
attending a meeting in the Regional Office, Gwalior, another
employee Shri Sushil Kumar Verma (hereinafter referred to as
‘PW-10’) was given the additional charge as Manager-in-Charge.
Guna is a very small branch of the Central Bank of India but on
11.06.2004 a large amount of Rs. Fifteen Lakhs came into the
custody of the Bank, and everybody in the Bank was aware of this
fact. The next day, 12.06.2004, happened to be a Saturday, and
after the transactions were completed and the branch was closed
at 5.45 p.m., it reopened only on Monday, i.e., 14.06.2004 at
10.30 a.m., intervening Sunday being a holiday. As the
commission of theft and other offences occurred after Saturday
evening at 5.45 p.m. and before 10.30 a.m. on Monday, and the
locks of the building were not broken, all the transactions before
and after the closure became relevant to detect the crime. The
prosecution explained the events as under.
4. On 12.06.2004 at around 3.30 p.m., there was a problem
with the computer at the Bank, and PW-10 got involved in
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rectifying it. As the Bank was about to close, a customer
Smt. Seema Jain walked in and sought to use the bank locker, for
which PW-10 sought the help of the Appellant. The Appellant,
along with Sanjay Daria (hereinafter referred to as ‘PW-12’),
entered the locker room and helped the customer operate the
locker. After the above-referred transaction, the Appellant left the
Bank. PW-10, PW-12 and A-1 remained in the premises till
5.45 p.m., and by the end of the day, after A-1 secured the locks
of the main gate, PW-10 and PW-12 left for their respective
5. On Monday i.e., 14.06.2004, the sanitation employee
Rajendra Premi (PW-9) went to the house of the Appellant to collect
the key to the main gate of the Branch. After reaching the Bank,
he started his routine work of cleaning when another peon
Dashrath Yadav (hereinafter referred to as ‘PW-5’), security guard
Ram Naresh Bhadoria (PW-7), and PW-10 also reached the Bank
at about 10.00 a.m. Around the same time, the Appellant also
reached the Bank. PW-5 was asked to open the main gate of the
strong room, and it is the case of the prosecution that this gate
could not be opened with the key of the Manager-in-Charge
PW-10. However, it opened with the help of the Appellant’s key. As
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soon as they entered the strong room, they sensed a burning smell
of petrol. After that, they sought to open the grill gate of the strong
room. This could also not be opened with the key in the custody
of PW-10, but could be opened with the key of the Appellant. Upon
entering the room past the grill gate, the employees saw that the
bank registers were thrown open, and some of them were in a
burnt condition. Further, even the safe inside the strong room
could not be opened with the key of PW-10 but could be opened
with the key of the Appellant. Upon opening the safe, they noticed
that the bundle of currency notes and secured documents were in
half-burnt condition and lying scattered. After inspection, it was
noticed that out of Rs. 18,07,691/- in the custody of the Bank as
of 12.06.2004, an amount of Rs. Six Lakhs was missing, and
currency notes worth Rs. 17,160/- were in a half-burnt condition.
At this point, A-1 was not in the Bank. PW-10 informed Senior
Manager PW-4 about these events at 10.30 a.m. PW-4 returned to
the Bank and finally lodged the FIR No. 538 of 2004 on 14.06.2004
at 6.15 p.m. before the Police Station Guna. The FIR was registered
for offences under Sections 436 and 380 of the IPC.
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6. During the course of the investigation, A-1 was interrogated
on 15.06.2004. Based on the information given by him through
Memo Ex. P-5, Rs. 5,40,000 was recovered from a briefcase at the
‘tand’ of a room in A-2’s house, and the balance amount of
Rs. 50,000 was also recovered from a locker secured in an almirah
in his house. Further, A-2 led the investigation to identify and
recover the plastic bottle containing the remaining petrol, hidden
in the canteen of the branch. The Investigating Officer seized it
through memo Ex. P-58.
7. In the absence of evidence of breaking of the locks of the
building, or of the main gate, grill gate of the strong room, or even
the safe in the Bank, it was inferred that the act of theft was not
possible without the usage of actual keys. As the second set of
keys were in the official custody of the Appellant, he was arrested.
8. While A-1 and A-2 were charged for offences under Sections
436, 457, 380, 201 and 477 of the IPC, the Appellant was charged
for the same crimes with the aid of Section 120B therein. All the
three accused were tried together by the First Additional Sessions
Judge, Guna, in Sessions Case No. 228 of 2004.
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9. The prosecution examined 20 witnesses, being PW-1 to PW20 and marked as many as 65 documents. As there was no direct
evidence of the commission of the offence, the prosecution had to
rely on circumstantial evidence through testimonies of PW-4,
PW-5, PW-6, PW-7, PW-8, PW-9 and PW-15 to prove that the theft
and incineration of currency notes and documents by the
sprinkling of petrol had in fact taken place at the instance of A-1
and A-2.
Trial Court:
10. The Trial Court, by its judgment dated 07.03.2006, rejected
the plea of A-1 and A-2 that no offence of theft was committed as
the entire cash was recovered, by holding that the cash receipts
recovered from A-2 based on A-1’s statements, bore slips of
different banks, and undoubtedly comprised stolen property.
Further, the argument that branch-wise account statements of the
Bank from 12.06.2004 and 14.06.2004 did not show any variation
in the amount maintained by the Bank, was rejected by the Trial
Court based on the testimony of PW-4 and the recoveries made.
11. The Trial court convicted A-1 and A-2 for all the offences and
sentenced them as indicated earlier. Dealing with the access of the
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accused into the Bank, the strong room, and then into the safe
therein, the Trial Court relied on the evidence of PW-4, who
referred to the rules governing the operation of strong room and
safe with the aid of dual lock system. Based on testimonies of
PW-4, PW-5, PW-7, PW-8, PW-10, the Trial Court concluded that
the Appellant was in the exclusive custody of one of the keys that
could have been used for operating the grill gate, strong room, as
well as the safe of the Bank. After referring to the statements of
these witnesses, the Trial Court concluded that as the Appellant
is the custodian of one set of keys, he was a part of a conspiracy
with A-1 and A-2 to commit the offences. It is on this inference
that the Trial Court convicted the Appellant for the same offences
with the aid of Section 120B of the IPC and proceeded to sentence
him along with the other accused.
High Court:
12. As indicated above, the High Court has confirmed the
conviction and sentence of the Trial Court with a simple
modification that rigorous imprisonment for six years under
Section 477 of the IPC was reduced to rigorous imprisonment of
four years.
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13. Before considering the submissions made on behalf of the
Appellant, we may note that all the three accused have already
served their sentences.
14.1 Ms. S. Janani, AOR appeared on behalf of the Appellant, had
reiterated the submissions made on behalf of A-1 and A-2 in the
Trial Court, that there was no loss caused to the Bank, as the
entire stolen amount was recovered. She sought to demonstrate
that the accounts maintained by the Bank did not reflect any
variation in the amounts; hence, the Trial Court, as well as the
High Court, were not justified in concluding that commission of
theft took place and accordingly convicting the Appellant.
14.2 We heard Shri Pashupathi Nath Razdan, AOR, assisted by
Shri Prithiviraj Singh, Shri Mirza Kayesh Begg, Shri Prakhar
Srivastav, Shri Astik Gupta, Ms. Ayushi Mittal for the State. Shri
Razdan has submitted that the Trial, as well as the High Court,
correctly concluded the findings on the basis of well-appreciated
evidence, and there is no occasion for interfering with the
judgment of the High Court.
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15. We are not convinced with the argument of Ms. Janani, that
neither an offence of theft has taken place nor any loss was caused
to the bank, for the very same reason that the Trial Court as well
as the High Court had given while confirming the conviction of
A-1 and A-2. We reiterate that apart from the testimony of the
Senior Manager PW-4, proving the fact of theft, both the Courts
have observed that the recovered currency notes from A-2’s house
bore slips of different banks, including the Central Bank of India
and the Punjab National Bank. Mere recovery of the stolen amount
by the Bank does not exonerate A-1 and A-2 and for that matter,
even the Appellant. We, therefore, have no hesitation in rejecting
this submission.
16. So far as the Appellant is concerned, we have noted that there
is neither any overt act attributable to him, nor any recovery of
stolen property from him. The conclusion drawn against him is
only for the reason that he was in exclusive possession of the set
of keys used to open the locks of the main gate, the grill of the
strong room and the safe inside it on 14.06.2004. Hence, his
conviction and sentence were based exclusively on the charge of
conspiracy under Section 120B of the IPC.
Page 11 of 19
17. Before we consider Appellant's liability for being the
authorized custodian of one set of keys for the lockers, it is
necessary to examine the system of dual locking adopted by the
Bank. The Office Manual of the Bank provides that cash was to be
stored in the strong room of the Bank, guarded by a Dual Control
System, where locks are secured by two keys operable successively
and separately. The Branch Manager and the Cashier-in-Charge
are to be in the joint custody of the sets of keys to the strong room
and the safe. The relevant clauses in the Manual are extracted
herein below for ready reference:
“2.1.1 The branch cash balance must be kept
overnight in the strong room, or at the smaller
branches where no strong room has been
installed in a fire-proof safe, in the joint custody
of the Head Cashier and the Manager or any
other officer authorized to hold joint custody of
2.1.2 The strong room or fire-proof safe, must be
under the double lock of the Head Cashier and
officer-in-charge, and both must be present
whenever the strong room or safe is opened to
withdraw or deposit cash and neither official
may enter the cash portion of the strong room
except in the presence of the other.
2.1.3 Under the dual control system, it is
advisable that the Branch Manager should hold
the second key of the cash safe and the cashierin-charge the first key. First and second keys are
so named according to the order of locking the
safe. For the strong room door, the Branch
Manager will hold the first key and the Cashierin-Charge the second key.
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2.1.6 The key holders are jointly responsible for
the contents of the strong room/safe.”
18. Returning to the charge under Section 120B of the IPC, the
evidence available on record will only show that when on Monday
morning, i.e. 14.06.2004, PW-5 and Manager-in-charge PW-10,
along with the Appellant, sought to open the main gate, grill gate
of the strong room, as well as the safe, the locks allegedly could
not be opened with the set of keys in possession of PW-10, but
could be opened through the set of keys in custody of the
Appellant. Precisely what caused the locks to not open with the
keys of PW-10 is not explained. The fact that these locks could be
opened by the key in possession of the Appellant cannot by itself
lead to an inference that he alone was responsible for enabling A1 and A-2 to access the safe to commit the offences. The very
purpose and object of the dual lock system is to prevent any single
custodian from accessing the strong room and the safe.
19. As per Clause 2.1.2 of the Office Manual, both the key
holders were mandatorily required to be present each time the
locks were secured or opened, except in emergency circumstances
which stipulate handing over the key to the next senior official and
recording the same in the key movement register. We may note
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here that the key movement register was not seized or produced
by the prosecution on the premise that it was practically never
used. Further, Clause 2.1.6 of the Office Manual stipulates that
both the key holders are jointly responsible for the contents of the
strong room and the safe. Under these circumstances, we are of
the opinion that the Appellant cannot be solely held accountable
for the failure to comply with the Office Manual, and for this reason
the Appellant’s exclusive possession of the keys cannot render him
culpable of the offences as mentioned earlier.
20. In his evidence, PW-10 stated that on 12.06.2004, he caused
the main gate of the branch to be closed by A-1, a contingent
employee. Thereafter, on 14.06.2004, the sanitation employee
obtained this set of keys from the house of the Appellant, a fact
used by the prosecution to imply that after the branch was locked
on 12.06.2004, the Appellant was in possession of the keys to the
main gate of the branch. On this, the Trial Court glossed over the
lapse on the part of PW-10. This questionable observation of the
Trial Court is as follows:
“It was admitted by Sushil Verma (PW-10) in the
paragraph No. 30 of the cross-examination that
locks could be locked as per the rules of the bank
only by the authorised person. The accused
Pradeep being not a casual worker, but even
then he had committed error deliberately while
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handing over the key. The witness stated further
in the paragraph No. 36 that the external, gate
was got closed by the accused Pradeep. It is
correct to say that he had no authority to close
the gate. Thus the witness did not get the lock
locked by the authorised person as per the rule
of the bank, but the lock was locked by
unauthorised person. But the errors committed
by the witness do not exempt the accused from
the consequences of the crime. It does not
provide any benefit to the accused.”
(emphasis supplied)
21. Apart from the fact that the Appellant by himself could not
have operated the strong room and the safe of the Bank without
the presence of the officer who was in the custody of the other set
of keys, it is also important to note that the prosecution completely
failed in adducing any evidence to indicate the existence of any
agreement between the Appellant on the one hand and A-1 and
A-2 on the other. The link necessary for proving the charge of
conspiracy is entirely missing.
22. The principal ingredient of the offence of criminal conspiracy
under Section 120B of the IPC is an agreement to commit an
offence. Such an agreement must be proved through direct or
circumstantial evidence. Court has to necessarily ascertain
whether there was an agreement between the Appellant and A-1
Page 15 of 19
and A-2. In the decision of State of Kerala v. P. Sugathan and Anr.2,
this Court noted that an agreement forms the core of the offence
of conspiracy, and it must surface in evidence through some
physical manifestation:
“12. ...As in all other criminal offences, the
prosecution has to discharge its onus of proving
the case against the accused beyond reasonable
doubt. ...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...
13. ...The most important ingredient of the
offence being the agreement between two or
more persons to do an illegal act. In a case where
criminal conspiracy is alleged, the court must
inquire whether the two persons are
independently pursuing the same end or they
have come together to pursue the unlawful
object. The former does not render them
conspirators but the latter does. For the offence
of conspiracy some kind of physical
manifestation of agreement is required to be
established. The express agreement need not be
proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not
sufficient...” (emphasis supplied)

23. The charge of conspiracy alleged by the prosecution against
the Appellant must evidence explicit acts or conduct on his part,
manifesting conscious and apparent concurrence of a common
2 (2000) 8 SCC 203.
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design with A-1 and A-2. In State (NCT of Delhi) v. Navjot Sandhu3,
this Court held:
“101. One more principle which deserves notice
is that the cumulative effect of the proved
circumstances should be taken into account in
determining the guilt of the accused rather than
adopting an isolated approach to each of the
circumstances. Of course, each one of the
circumstances should be proved beyond
reasonable doubt. Lastly, in regard to the
appreciation of evidence relating to the
conspiracy, the Court must take care to see that
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.” (emphasis supplied)
24. In accepting the story of the prosecution, the Trial Court, as
well as the High Court, proceeded on the basis of mere suspicion
against the Appellant, which is precisely what this Court in
Tanviben Pankajkumar Divetia v. State of Gujarat4, had cautioned
“45. The principle for basing a conviction on the
basis of circumstantial evidences has been
indicated in a number of decisions of this Court
and the law is well settled that each and every
incriminating circumstance must be clearly
established by reliable and clinching evidence
and the circumstances so 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
3 (2005) 11 SCC 600.
4 (1997) 7 SCC 156.
Page 17 of 19
the guilt is possible. This Court has clearly
sounded a note of caution that in a case
depending largely upon circumstantial evidence,
there is always a danger that conjecture or
suspicion may take the place of legal proof. The
Court must satisfy itself that various
circumstances in the chain of events have been
established clearly and such completed chain of
events must be such as to rule out a reasonable
likelihood of the innocence of the accused. It has
also been indicated that when the important link
goes, the chain of circumstances gets snapped
and the other circumstances cannot, in any
manner, establish the guilt of the accused
beyond all reasonable doubts. It has been held
that the Court has to be watchful and avoid the
danger of allowing the suspicion to take the place
of legal proof for sometimes, unconsciously it
may happen to be a short step between moral
certainty and legal proof. It has been indicated
by this Court that there is a long mental distance
between “may be true” and “must be true” and
the same divides conjectures from sure
conclusions. (Jaharlal Das v. State of Orissa
(1991) 3 SCC 27)”
 (emphasis supplied)
25. It is not necessary that there must be a clear, categorical and
express agreement between the accused. However, an implied
agreement must manifest upon relying on principles established
in the cases of circumstantial evidence. Accordingly, in the
majority opinion of Ram Narayan Popli v. CBI5, this Court had held:
“354. ... For the offence of conspiracy some kind
of physical manifestation of agreement is
5 (2003) 3 SCC 641.
Page 18 of 19
required to be established. The express
agreement need not be proved. The evidence as
to the transmission of thoughts sharing the
unlawful act is not sufficient...”
26. In view of the clear enunciation of law on the criminal
conspiracy by this Court, we find that the prosecution has failed
to produce any evidence whatsoever to satisfy the Court that there
was a prior meeting of minds between the Appellant and A-1 and
A-2. There is no physical manifestation of such a concurrence
extractable from surrounding circumstances, declarations, or the
conduct of the Appellant. The evidence is shorn of even a passive
acknowledgment of conspiracy of the Appellant with the accused,
let alone heralding a clear and conscientious participation of the
Appellant in the conspiracy. As noted above, this Court has
cautioned against replacing mere suspicion with the legal
requirement of proof of agreement.
27. For the reasons stated above we are of the opinion that the
prosecution failed to establish the circumstances in which the
Appellant, being the custodian of only one set of the keys for the
dual lock system functional in the Bank, could alone be made
responsible for providing access to the strong room and the safe in
the Bank. We are also of the clear opinion that the prosecution
failed to establish the existence of any agreement between the
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Appellant, A-1 and A-2, which is quintessential for a charge under
Section 120B of the IPC. In the absence of such an agreement,
even by inference through circumstantial evidence, the Appellant
is entitled to be acquitted of the charge of criminal conspiracy.
28. For the reasons and conclusions drawn by us, we hereby:
i) Allow Criminal Appeal No. 1066 of 2010.
ii) The judgment passed by the High Court of Madhya
Pradesh in Criminal Appeal No. 213 of 2006 dated
05.08.2008 and the judgment of the First Additional Sessions
Judge, Guna in Sessions Case No. 228 of 2004, dated
07.03.2006, are hereby quashed and set aside.
iii) The Appellant is acquitted of all the charges.
iv) Parties to bear their own costs.
AUGUST 25, 2022 


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