GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

CRIMINAL LAW I PROJECT

CASE ANALYSIS OF

GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

SUBMITTED TO: SUBMITTED BY:

Asst. Prof. Divya Salim Manasvi Tewari

2014B.A.LL.B.
(HONS.)75
 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

ACKNOWLEDGEMENT

I take this opportunity to express a deep sense of gratitude to The National Law Institute University
(NLIU) for providing me with the opportunity to make this project.
I extend my sincere thanks to everybody who helped with the completion of this project. I am greatly
obliged to our teacher for criminal law Ms. Divya Salim guidance, monitoring and approval throughout
the course of this project. I am also thankful to the Library Administration for the provision of necessary
books and texts needed for the completion of this project.
 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

TABLE OF CONTENTS

ACKNOWLEDGEMENT.................................................................................................................................2
MATERIAL FACTS.........................................................................................................................................2
ISSUES RAISED.............................................................................................................................................3
ARGUMENTS ON BEHALF OF THE APPELANT..............................................................................................4
ARGUMENTS ON THE BEHALF OF THE RESPONDENT..................................................................................5
JUDGEMENT OF THE SUPREME COURT.......................................................................................................6
CRITICAL ANALYSIS......................................................................................................................................8
1. SUBSTANTIVE LAW..........................................................................................................................8
2. PERSONAL COMMENT:..................................................................................................................10

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

MATERIAL FACTS

1. Dr. Gopal Prasad Sinha who is the informant as well as the complainant was going along
with Sant Kumar Sinha (deceased), on his motorcycle when, they saw a scooter and a
motorcycle parked at the side of the road and six persons including the appellants who were
all standing in the close proximity thereof, and they signaled the complainant to stop.
2. All the people involved got into an argument and within no time, Yakub Ansari and Dhiren
Mahto - appellant took out their pistols from their waist and pointed towards them and asked
why Sant Kumar Sinha (deceased) was disturbing the working of the institute. They
threatened the deceased to remain away from the institute.
3. The deceased asked the accused persons how they were related to running the affairs of the
institute, which led to an exchange of hot words between the deceased and the accused
persons. 
4. Accused Asgar started inflicting blows by means of a knife and told his companions to
complete the task for which they had come. Immediately, Yakub opened fire at point blank
range from his revolver on the left side of the neck of the deceased due to which the deceased
collapsed and died immediately.
5. The informant/complainant being scared ran away from the place of occurrence, leaving his
motorcycle at the spot and As per the case of the prosecution, Gulam Sarbar the appellant
ran away on Yakub’s motorcycle after the incident. He was chased by the police and arrested
at a short distance from the place of occurrence after he jumped a police barricade.
6. Gulam Sarbar simply denied all allegations against him and even denied his presence at the
place of occurrence.
.

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

ISSUES RAISED

1. Can the appellant-accused be charged read with Section 120B of the Indian Penal Code of
1860 (hereinafter The Code)?
2. What there a criminal conspiracy that existed while attacking the deceased in reference to the
facts and circumstances of the case?

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

ARGUMENTS ON BEHALF OF THE APPELANT

1. That the evidence led by the prosecution is insufficient to prove that there was any
Criminal Conspiracy.
The Counsel for the appellants submitted that the evidence submitted was full of
contradictions and improbabilities. That there exists no material on record to prove the
existence of a conspiracy to kill Sant Kumar Sinha (deceased)

2. That there were discrepancies in the investigation conducted.

2.1 the arrest of Gulam Sarbar from a place near to the place of incident is doubtful. Had it
been so, the FIR which was registered after the arrest of Gulam Sarbar, would contain such
facts. Even the general diary did not mention what the distance was between the police
station and the place from where Gulam Sarbar, appellant, was arrested. The investigation
had not been conducted properly and fairly

3. The prosecution case is based on speculation and conjecture thus, the appeals deserve to be
allowed and the judgment and order of the courts below are liable to be set aside.

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

ARGUMENTS ON THE BEHALF OF THE RESPONDENT

1. That there was a pre mediated plan to kill deceased.

Contending that there are concurrent findings of facts and that both accused persons were
well acquainted with Binod Kumar, the main accused, and had been seen by the witnesses
and particularly by Dr. Gopal Prasad Sinha (PW.7) in the institute owned by Binod Kumar,
accused, prior to the incident members of the unlawful assembly as well.

2. That criminal conspiracy can be attributed to the appellants.

2.1 The counsel for the respondent has submitted that because of the existing rivalry between
the two groups of people the deceased was done to death.
2.2 The offence takes place with the meeting of minds even if nothing further is done. It is an
offence independent of other offences and punishable separately

3 Conduct of parties sufficient to attribute guilt.

3.1 Their presence on the spot and the manner in which they had parked their vehicles and
stopped the motorcycle on which the complainant and deceased were travelling is enough to
prove the conspiracy.

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

JUDGEMENT OF THE SUPREME COURT

1. The Trial Court had after considering the material on record vide its judgment and order
convicted both the appellants under Sections 302 and 120-B IPC along with other accused and
sentenced.

2. Aggrieved, they preferred appeals along with others before the High Court which High Court
reappreciated evidence and upheld findings of facts recorded by trial court observing that ocular
evidence was in consonance and in conformity with medical evidence stood dismissed by the
impugned judgment.

Hence, these appeals were made to the Supreme Court

The Supreme Court held

1. The offence takes place with the meeting of minds even if nothing further is done. It is an
offence independent of other offences and punishable separately. Thus, the prosecution is
required to establish the offence by applying the same legal principles which are
otherwise applicable for the purpose of proving criminal misconduct on the part of an
accused.

2. Criminal conspiracy is generally hatched in secrecy thus direct evidence is difficult to

obtain or access. The offence can be proved by adducing circumstantial evidence or by
necessary implication. Meeting of minds to form a criminal conspiracy has to be proved
by adducing substantive evidence in cases where circumstantial evidence is incomplete or
vague. 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 between the
parties. Agreement is essential.

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

3. In Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh & Anr. v. CBI 1, it was held that
in order to come under this provision it is not necessary for the accused to know the
detailed stages of conspiracy; mere knowledge of main object/ purpose of the conspiracy
would suffice for this Section.

4. Similarly, in Vikram Singh & Ors. v. State of Punjab2, this Court dealt with a case where
the accused had purchased fortwin injection and chloroform. Thus, it was held that since
the purchase of these materials was an initial step towards commission of offence, the
presence of co-accused Sonia, though not referred to by the witnesses at the time of
actual kidnapping would not imply that she was not privy to conspiracy and conviction of
the accused under Section 120-B3  IPC was upheld.

5. This case is supposed to be a landmark judgment in the sense that the court held that ‘It is
not the number of witnesses but quality of their evidence which is important, as there is
no requirement under the Law of Evidence that any particular number of witnesses is to
be examined to prove/disprove a fact. It is a time-honoured principle that evidence must
be weighed and not counted.’

1
(2008) 15 SCC 49,
2
AIR 2010 SC 1007
3
Punishment of Criminal Conspiracy

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

CRITICAL ANALYSIS

1. SUBSTANTIVE LAW
The instant case primarily address the conflict between the scope of applicability of common
object, as provided under Section 120B and common intention provided under Section 34. These
provisions are discussed in greater detail below.

120A. Definition of criminal conspiracy

When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or

(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-   It is immaterial whether the illegal act is the ultimate object of such agreement,
or is merely incidental to that object.]

120B. Punishment of criminal conspiracy

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.

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(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for a
term not exceeding six months, or with fine or with both.]

Section 34 – Acts done by several persons in furtherance of common intention

Section 34 of the Code carves out an exception from general law that a person is responsible for
his own act, as it provides that a person can also be held vicariously responsible for the act of
others if he has the “common intention” to commit the offence. Section 34 has been enacted on
the principle of joint liability in the doing of a criminal act.4

However, the Section 34 necessitates fulfillment of two distinct requirements for the purpose of
establishing the common intention of several persons –

(i) Common intention - The phrase “common intention” implies a pre-arranged plan and
acting in concert pursuant to the plan. Thus, the common intention must be there prior to
the commission of the offence in point of time. The common intention to bring about a
particular result may also well develop on the spot as between a number of persons, with
reference to the facts of the case and circumstances existing thereto.
The common intention under Section 34 of the Code is to be understood in a different
sense from the “same intention” or “similar intention” or “common object”.
(ii) Participation of the accused in the commission of the offences – Such participation
need not be overt on part of all the persons involved.5

What has, therefore, to be established by the prosecution is that the accused had acted in
furtherance of their common intention, and this criterion is required to be proved specifically or
by inference, in the facts and circumstances of the case.6 Thus, the ultimate decision, at any rate,
invariably depends upon the inferences deducible from the circumstances of each case.7

4
Girija Shankar v. State of U.P., (2004) 3 SCC 793.
5
Supra note 4.
6
Harbans Kaur & Anr. v. State of Haryana (2005) 9 SCC 195
7
Gopi Nath @ Jhallar v. State of U.P. (2001) 6 SCC 620

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 GULAM SARBAR V STATE OF BIHAR (2014)3 SCC 401

Furthermore, in Girija Shankar v. State of U.P.8 the Supreme Court observed that:

“…The section is only a rule of evidence and does not create a substantive
offence. The distinctive feature of the section is the element of participation in
action... Direct proof of common intention is seldom available and, therefore,
such intention can only be inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.”

2. PERSONAL COMMENT:
The Supreme Court has rightly proceeded in the matter by dismissing the appeal. The facts on
record were sufficient to establish common object, and thus, the application of Section 34 stands
justified.

The Prosecution has successfully managed to established involvement of appellants in crime and
manner in which crime has been committed clearly establishes conspiracy. The Appellants on the
other hand did not furnish any satisfactory explanation of circumstances under which they were
present at place of occurrence. Also the manner in which they fled away after commission of
crime clearly indicates their involvement in offence to conduct a conspiracy. The gist of the
offence of Criminal conspiracy is to break the law. It does not mean a single act but could also
mean a number of acts done together. It is sufficient if the agreement to commit the illegal acts I
established. To establish the charge of conspiracy, knowledge about the involvement or
indulgence in either an illegal act or a legal act by illegal means is necessary. It is essential to not
that the entire agreement must be viewed as a whole and it has to be ascertained as to what in
fact the conspirators intended to do or the object they wanted to achieve.

The essence of criminal justice system is to prove that there is guilt beyond reasonable doubt.
From the above facts along with the understanding of section 120 we can say that the court
managed to yet again do its job and carry out justice.

8
Supra note 8.

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