Mirza Akbar v. Emperor

After reading this Privy Council precedent, you will learn how and why the Court held that statements made by wife could not be considered as "common intention"
CITATION(1941) 43 BOMLR 20
COURTHigh Court of Bombay
JUDGES/CORAMV Maugham, Wright and G Rankin
DATE OF JUDGEMENT28.05.1940

Introduction

Criminal conspiracy is defined under section 120A of Indian Penal Code, 1860, and is defined as;

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

  • (1)     An illegal act, or
  • An act which is legal 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 an agreement in pursuance of thereof. Though conspiracy was initially considered as only a civil wrong, later it was brought under the ambit of the Indian Criminal Law by the Criminal Amendment Act of 1913, passed which added Section 120-A and 120-B to the Indian Penal Code.

Facts

The facts of the case are as follows: In this case, the appellant was tried along with the actual murderer Umar Sher and with Mst. Mehr Taja who had been the wife of the murdered man Ali Askar. The murder was committed on August 23, 1938, in the village of Taus Banda about four miles from Hoti. The guilt of Umar Sher was not really open to doubt as he was practically caught red-handed when he was running away with a single barrel shotgun in his hand, the barrel of which smelt as if freshly discharged. Umar Sher’s main defence seems to have been an absence of motive. This fact however was relied upon by the prosecution as showing that he was a hired assassin, bribed to commit the murder by the appellant and Mst. Mehr Taj who were co-conspirators in that regard. This was found by the Court to have been the fact. The principal evidence of the conspiracy between these two prisoners consisted of three letters, two from the female prisoner to the appellant, and one from the appellant to the female prisoner. The authenticity of the letters as being what they purport to be and the handwriting have not and could not have been contested before their Lordships.

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Issues

The main issues in the case were:

  1. Whether the love letter produced is relevant under section 10 of Indian Evidence Act, 1872?
  2. Whether the statement made by the wife before the Judicial Magistrate is relevant?

Summary of court decision and judgment

That statement which was made in the appellant’s absence was admitted in evidence both by the trial judge and by the Judicial Commissioner on appeal as relevant against the appellant under section 10 of the Evidence Act. The Judicial Commissioner said that it had been argued that section 10 did not apply to any statement made by conspirators if the offence to commit which they conspired, has actually been committed. He rejected that argument and refused to hold that section 10 had that limited meaning, though he held that the evidence of the statement could not have great weight as against the appellant since he had not had an opportunity of cross-examining Mst. Mehr Taja upon it.

The three documents taken as a whole show that the two writers of the documents desired to get rid of Ali Askar so that they should marry each other and there was a question of finding money for a hired assassin to get rid of him. Subsequently, we find that Ali Askar was shot by a man who had no motive to shoot him. In addition to this, there was the strange conduct of Mirza Akbar when Umar Sher was arrested. There is no reason for doubting the statement of the witnesses that he did request that Umar Sher should be released. It is true that in the earlier statements the witnesses did not mention this fact, but the obvious reason is that they did not attach any importance to it at the time because they had no conception as to what was the motive for the commission of the offence. In my opinion, there is no doubt whatsoever that these two Appellants Mirza Akbar and Mst. Mehr Taja did enter into a conspiracy to murder Ali Askar and that they hired Umar Sher to commit the actual murder, which he did.

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On the material before the Court, after the statement is excluded, there was evidence sufficient to justify the conviction. The terms of the letters are only consistent with a conspiracy between the prisoners to procure the death of Ali Askar. The vague suggestion that they related merely to a scheme to obtain a divorce and to raise money for that purpose is clearly untenable. The handwriting of the letters is clearly established. Under those circumstances, their Lordships will follow the precedent established in Pakala Narayana Swami v King Emperor, and hold that in this ease as in that it is impossible to say that the proceedings which ended with the conviction resulted in a failure of justice

Analysis

The Privy Council has rightly adjudged that the statement made by the wife is not relevant as “Common Intention” envisaged under section 10 of the Indian Evidence Act, as it refers to anything said, done, or written by a conspirator during the pendency of conspiracy. The statement made by one conspirator against another is not relevant if made after termination of conspiracy. The evidence of a conspiracy is admissible against his co-conspirator on the principle that the thing is done, written or spoken was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy.

Letters written between Mirza Akbar and Mst. Mehr Teja

  1. Greetings to thee O my sweet-heart. Mind not in the least if I have been hard on thee at times pray to forgive me for the same. In fact I feel offended when ill is spoken of thee. Khan Khela who had visited my house when Amir Jan was suffering from pain had a lot of talk against thee, but beware and lend not thy rears to these. They are archdevils. Partake not of anything from their hands. Now I shall sell myself and do this act if only I have thee at my back. What a blissful hour it would be when with Amir Jan wailing over Ali Askar we contract our Nikah and enjoy ourselves. Be not angry my darling for thy sorrow makes me sad. However hard on thee I have been in the past, that is all past. Henceforth I solemnly promise to desist. I do fervently cherish the hope that God will make thee mine. Try and send Mir Aftab often to me so that I may talk to him. I have found out money for thee but thon must unhesitatingly Jind out the man. My heart is bursting for thee and j long for thee immensely. In the end accept my greetings.
  2. Letter to the sweet-heart. Peace be on you. The fact, my darling is that I am in great distress otherwise I would not have conveyed thee such harsh things. I say these to thee for I am extremely distressed. Who but thee have I as my own m this land of the Lord? I have a lot to tell you but I am helpless. For Gods-sake spare not a moment or thou wilt ever repent my loss. They are all one against me. It would be better if aught thou could do. Accept greetings.
  3. My sweet-heart and the bearer of my burden. If thou tauntest me in regard to my mother what do I care for her. I look to my God and to thee only for’ reliance. I cannot wait any more. For the sake of God and his Prophet do try or I will die. You must find out the money or I would die. Is it of my choice to be roaming about and thou be enjoying with him, but what shall I do. If I had my own way I would not have left you to remain with him. I am burning and have pity on me for God’s sake. To me the passing of each day is like months and years. Once place thyself in my charge and satiate me with the honey of thy red lips. Even if thou cut test my head off my neck I would still yearn for thy white breast. This is my last word if only thou wouldst attend to it. I have vowed for thy sake at many a shrine. The house of the torturer will be rendered desolate. Mirza Akbar’s limbs have grown sapless after thee.
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Conclusion

Hence, it is clear that there is no discretionary power given to the court for the admission of the statements made under section 10 of Evidence Act but there are some prima facie and circumstantial evidence which must be proved before any admission of the statement under this section of the Act.