H. Imtiyaz Hussain, J. 1. Being aggrieved by the judgment and order of conviction passed in File No. 28/Sessions of 2003, by the Principal Sessions Judge Kathua, convicting the appellant under sections 302, 120-B/109 R.P.C. and 5 E.S. Act and sentenced to undergo various terms of imprisonment including imprisonment for life and fine, appellant Bashir Ahmed has filed this appeal on the grounds taken in the memo of appeal. 2. The prosecution case, stated briefly, is as under:- On 31st August 2003, a police party of Special QRT Group, Malhar was on patrol in Malhar area which was infested with militants who had waged a guerrilla war against the State. The police party was headed by Constable Mool Raj. They conducted search in Kamlog Gala and Churchur Gala area and when they reached Khandara near the house of appellant, they saw that some militants were hiding in the `Dohk of the appellant. The allegation against the appellant is that when the appellant saw the patrolling party, he cried loudly to gave a signal to the militants to inform them about the police. On this, the militants started indiscriminate firing on the police party with their weapons. The police party also opened fire and the encounter continued for about half an hour. During the encounter, SPO Parshotam Singh sustained a burst and died on spot. The militants, however, managed to run away from the spot. The police party searched the house of the appellant and recovered RDX weighing 5 kgs, two batteries and six small cells from there. The statement of Mool Raj was recorded and the same was sent to Police Station, Malhar for registration of a case. FIR No. 19/2003 was registered in the police station and investigation started. On completion thereof, a final report against the appellant under sections 302,307,120-B and 109 RPC read with sections 4 and 5 Explosive Substance Act was filed in the Court of Judicial Magistrate 1st. Class, Billawar wherefrom the case was committed to the Court of Sessions Judge, Kathua for trial. 3. The appellant was charged for offence under sections 302, 307,120-B read with section 109 RPC and under sections 4 and 5 Explosive Substances Act. The accused, however, pleaded not guilty to the charge and claimed trial. The prosecution examined Lal Din, Mool Raj, Dr. 3. The appellant was charged for offence under sections 302, 307,120-B read with section 109 RPC and under sections 4 and 5 Explosive Substances Act. The accused, however, pleaded not guilty to the charge and claimed trial. The prosecution examined Lal Din, Mool Raj, Dr. M. Ishaq Wani, Surjit Singh, Krishan Chand, Badri Nath, Lekh Raj, Chan Mohd, Tara Chand, Charan Dass and Dinesh Singh Jasrotia in support of its case. 4. PW Lal Din has stated that he did not see any militant but heard the sound of firing. He does not know whether the militants were hiding in the house of the appellant. The witness has been declared hostile by the prosecution and has been cross-examined by the Public Prosecutor. In his cross-examination, he states that he never made any statement before the police that the appellant had exhorted the militants to run away or that any ammunition was recovered from the `dokh of the appellant. 5. PW Mool Raj is the constable who was heading the patrolling party at the time of occurrence. He states that on 31st August 2003 they were on patrolling duty, they reached Khandara Top, there was a cattle shed of the appellant who was standing outside it. When they reached near the house, the appellant raised an alarm about the police as the militants were hiding inside the house. The militants started indiscriminate firing on them, they also retaliated and the encounter took place for about half an hour. During this encounter Parshotam Singh SPO sustained a burst and died on spot. The militants ran away from the place. They searched the house of the appellant and recovered 5 kgs of RDX, electric wire and cells. He sent an information to SHO Malhar who came along with reinforcement and recorded his statement (EXPW2-MR) which bears his signature. The witness has also deposed about the preparation of seizure memos EXPW2-MR-1, EXPW2/MR-2, EXPW2-MR-3, EXPW2-MR-4, and EXPW2-MR-5. 6. PW Dr. M. Ishaq Wani has conducted postmortem of the deceased. He states that he found the following injuries on the body of the deceased:- i) A gunshot wound on the anterior side of the neck; ii) Intestines protruded out through the abdominal wall on the left side of the umbilicus; iii) Profuse per nasal bleeding present with signs. 7. PW Dr. M. Ishaq Wani has conducted postmortem of the deceased. He states that he found the following injuries on the body of the deceased:- i) A gunshot wound on the anterior side of the neck; ii) Intestines protruded out through the abdominal wall on the left side of the umbilicus; iii) Profuse per nasal bleeding present with signs. 7. The witness has stated that in his opinion death had occurred due to shock resulting from massive hemorrhage. He issued a certificate EXPW-11/M1. The witness has further stated that the injuries found on the body of the deceased were gunshot injuries and were sufficient in the ordinary course of nature to cause death. 8. PW Surjit Singh states that he went on spot along with the SHO where two empty cartridges of SLR and eleven empty cartridges of AK 47 were seized on spot and seizure memo EXPW-SS was prepared which bears his signature. 9. PW Krishan Chand states that in the month of August 2003 he was posted as Head Constable in Police Station Malhar. He went along with the SHO on spot and seized two empty cartridges of SLR and 11 empty cartridges of AK 47 vide seizure memo EXPW-SS which bears his signature. 10. PW Badri Nath has stated that receipt of dead body of Parshotam Singh (EXPW-BN) bears his signature. The receipt is marked as EXPW-BN. 11. PW Lekh Raj states that on 31st August 2003 he along with other members of Special QRT party was on patrol duty at Kamlole Gada, Tehsil Billawar. When they reached there, they chased three militants. When they reached near the house of the appellant, the appellant raised an alarm due to which firing started from inside the house. They also retaliated. During this encounter Parshotam Singh SPO sustained bullet injury as a result of which he died on spot. The militants succeeded to run away from the spot under darkness. He searched the house of the appellant and found 5 kgs of RDX, two batteries, six small cells and some wires from the house. In cross-examination the witness has stated that they reached the place of occurrence at 7.45 p.m. He fired 65 rounds whereas Mool Raj fired about 100 rounds. The witness has further stated that appellant, his wife and children were also present and when they reached there they started crying. 12. In cross-examination the witness has stated that they reached the place of occurrence at 7.45 p.m. He fired 65 rounds whereas Mool Raj fired about 100 rounds. The witness has further stated that appellant, his wife and children were also present and when they reached there they started crying. 12. PW Chan Mohd has stated that on 31st August 2003 he was posted as SPO in Police Station Malhar. They came to know that militants had come in the area so they went for search operation. The party comprising of six constables was headed by Constable Mool Raj. When the party reached Khandara, they became suspicious that the militants might be hiding there so they took their positions. After five minutes the appellant came out of his house. He called him towards his side, but instead of corning towards him the appellant went inside the room and firing started from there. During firing a burst hit Mool Raj, as a result of which the battery and wireless set were broken. Constable Parshotam Singh also sustained burst injuries and died on spot. The militants ran away from the spot. The party conducted search of the house of the appellant and found one bag inside the room containing about 5 kgs RDX, two batteries, 6 cells and wire. In cross examination the witness has stated that the Police Station Malhar is at a distance of 20 KM from the place of occurrence. His party fired about 400/450 rounds while as militants fired 750 rounds. He cannot say whether the house belongs to the appellant or not. 13. PW Tara Chand has stated that deceased Parshotam Singh was known to him. He died in an encounter with the militants. After postmortem his clothes were seized vide seizure memo EXPW-TC. 14. PW Charan Dass states that on 31st August 2003 he was on search operation along with Constable Mool Raj and other constables in Mamlook Gala area. When they reached Khandara, they found that the appellant was standing outside his house. As soon as he saw them, he went inside and in a loud voice said that the police had come, on this firing started from inside the house. The police also opened fire in return. Mool Raj constable sustained a burst on his leg as a result of which the battery of wireless set was broken. As soon as he saw them, he went inside and in a loud voice said that the police had come, on this firing started from inside the house. The police also opened fire in return. Mool Raj constable sustained a burst on his leg as a result of which the battery of wireless set was broken. The militants who fired from inside the house ran away from the spot. They searched the house of the appellant where they found a bag inside a room from which RDX, wire etc. was recovered. In cross-examination, he has stated that he did not go inside the house and remained outside with the dead body of Parshotam Singh. 15. PW Dinesh Singh Jasrotia was posted as Station House Officer in Police Station, Malhar . On 31st August 2003 he along with other employees was on patrol duty in Lohai Chochu Gala. During patrolling he received a wireless message from Khandara that Jawans of Special QRT party who were on patrol duty have been fired upon by the militants. On receiving the message he started his journey towards Khandara. He recorded the statement of Constable Mool Raj. It was stated to him that when the party had reached Khandara, appellant raised an alarm as a result of which the party became alert and the militants who were inside the dhok of the appellant started indiscriminate firing. The police patty also retaliated. In the said encounter Parshotam Singh SPO sustained a burst injury due to which he died on spot. He was further told that the militants ran away from there. The said party reached the dokh of the appellant from where 5 kgs of RDX, two batteries and six small cells were recovered. On the statement of constable Mool Raj FIR was registered in the police station and the investigation was started. He prepared the site plan EXPW-DS, seizure memo of the documents EXPW2-MR/2, seizure memo for the dead body EXPW2-MR/5, seizure memos of clay from the spot EXPW2-MR/4 and EXPW2-MR/5, seizure memo of empty cartridges EXPW-SS, seizure memo of clothes of deceased EXPW-CC and receipt of the dead body EXPW-BN which are in his hand and bear his signature. On the investigation offences under sections 302/307/120-B/109 RPC stood established against the accused. 16. On the investigation offences under sections 302/307/120-B/109 RPC stood established against the accused. 16. In cross-examination the witness has stated that on 31st August 2003 it had become dark and as there was movement of militants also it was not possible to send any person with a docket to the Police Station. On 1.9.2003 at about 10 A.M, he sent Constable Raman and Constable Mool Raj to the Police Station for registration of the case. The seizure memos were prepared on 1.9.2003, whereas FIR was registered on 2.9.2003. According to the witness it takes 8 to 10 hours to reach Police Station, Malhar from the place of occurrence. The documents are not in his hand but they bear his signatures. These documents were written by one of the constables. 17. The trial court has from the evidence found that the prosecution has succeeded in establishing that the appellant had entered into a criminal conspiracy with the militants and in pursuance of the said conspiracy he gave them shelter in his house and himself stood as a guard outside. The trial court has further found that when the security forces came he informed them and the militants fired indiscriminately at the police party, as a result of which Parshotam Singh SPO died whereas life of others was endangered due to said firing. The trial court has further found that from the statements of Mool Raj, Mulkh Raj, Chan Mohd, Charan Dass and Dinesh Singh Jasortia, it stands established that on search of the house of the appellant at Khandara Tehsil Billawar RDX five Kg., six small cells, two everyday batteries and a wire were recovered from there, the prosecution witnesses have thus proved that the house from where explosive substance was recovered was of the accused and he was in conscious possession of the seized substance. 18. On this finding the court convicted the appellant under sections 302,307, 120-B and 109 RPC read with section 5 Explosive Substance Act, and has sentenced him as under:- "..... to undergo rigorous imprisonment for life and pay a fine of Rs. 5000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for one year. He is further convicted under sections 307/120-B/109 RPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 3000/. to undergo rigorous imprisonment for life and pay a fine of Rs. 5000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for one year. He is further convicted under sections 307/120-B/109 RPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 3000/. In default of payment of fine, he shall further undergo rigorous imprisonment for a period of eight months. He is further convicted under section 5 Explosive Substances Act and sentenced to undergo rigorous imprisonment for a period of five years and pay a fine of Rs. 2000/-. In default of payment of fine, the accused shall further undergo rigorous imprisonment for six months. All the sentences shall start running concurrently. " 19. After recording the findings regarding the conviction of the appellant and imposing sentence as above, the court has referred the case to this court for confirmation of the sentence of imprisonment of life. 20. Aggrieved by the conviction and sentence the appellant has filed the present appeal. 21. It is alleged by the appellant that he is innocent and has been implicated by the police on a false and fabricated charge, he is not even remotely linked to the commission of the alleged offence, he has been made a scapegoat by the police to cover up its failure to capture or eliminate the real culprits. The appellant further urges that there is in fact no evidence on record that the appellant had any link with the militants, appellants association with militants and the reasons for that is not established at all. The order of conviction by the trial court, is in these circumstances, based on assumptions and presumptions without any sound reasoning and clear evidence. 22. Heard. We have considered the submissions of the learned counsels and have gone through the record. 23. Out of 11 witnesses examined by the prosecution witnesses namely, P.W. Mool Raj, P.W. Lekh Raj, P.W. Chan Mohd, Charan Dass are witnesses to the occurrence. 22. Heard. We have considered the submissions of the learned counsels and have gone through the record. 23. Out of 11 witnesses examined by the prosecution witnesses namely, P.W. Mool Raj, P.W. Lekh Raj, P.W. Chan Mohd, Charan Dass are witnesses to the occurrence. Though the trial court has, on the basis of the statements of these witnesses come to the conclusion that the appellant alerted the militants about the presence of the police who started firing indiscriminately on them but on a minute perusal and appreciation of the statements of these witnesses we find the evidence on record is too scanty and meager to bring in application of Section 120-B R.P.C. 24. No doubt it stands established from the evidence that the militants were present at Khandara Top, hiding in a "doka" and when the police patrolling party, headed by PW constable Mool Raj reached there, the militants fired upon them killing Parsohotam Singh SPO but there is no sufficient, clear and cogent evidence to show that there was a conspiracy between the militants and the appellant and that the militants fired upon the police party at the instance of or on the abetment of the appellant. 25. P.W Mool Raj says that when they reached Khandara Top and were near the house the appellant raised a voice that police has come, on this the militants started firing from inside the house. P.W. Lekh Raj too states the same thing but in cross-examination he has deposed that at the time of encounter the appellant was only 60 yards away from them but he did not see him talking to the militants. In examination-in-chief he introduces entirely a new story that in fact they chased the militants. P.W. Mool Raj states that when they reached near the house, they saw the appellant was sitting outside his house and on seeing the police appellant raised voice about the presence of the police but P.W. Charan Dass states that when they reached there, they saw the appellant was standing in front of a house, when he saw the police, he went inside, the house and raised voice that police has come. 26. P.W. Chan Mohd gives entirely a different version. 26. P.W. Chan Mohd gives entirely a different version. He states that there are two houses on the spot, on reaching there they took position, after about five minutes the appellant came out from one house, he called him but instead of coming to him the appellant went inside the house, meanwhile firing started from inside the house. 27. From these contradictory statements it is difficult to believe the prosecution version that it was at the instance of the appellant that the militants opened fire on the police party. Conspicuously no eye witness states that the appellant told the militants to open fire upon the police. The allegation is that he only alerted them. 28. The appellant has not taken any active part in the commission of offence under section 302 RPC. There is neither any allegation nor any evidence on this fact. He has been charged for the offence of criminal conspiracy and abetment. Section 120-B RPC deals with the offence of criminal conspiracy. It reads as under: - "120-B. Punishment of criminal conspiracy.-(l) 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 had abetted such offence. (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." 29. To establish the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or cause to be done, an illegal act or an act which is not illegal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object . To establish the offence, it has to be proved that the accused had the intention and had agreed to commit the crime. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object . To establish the offence, it has to be proved that the accused had the intention and had agreed to commit the crime. For an offence under section 120-B RPC, it has to be established that the accused charged with the criminal conspiracy had agreed to pursue a course of conduct which he knew was likely to lead to the commission of a crime. In the present case, hatching of conspiracy between the appellant and the militants who fired upon the police party is sought to be proved by the fact that the appellant on seeing the patrolling party raised his voice, but as discussed above there is no convincing evidence of the prosecution on this issue. There is no evidence that there was a conspiracy between the appellant and the `militants nor is such a conspiracy evident from the facts and circumstances of the case. Even if the facts are taken as correct, merely because the appellant raised voice would not show that he was in league with the militants and had entered into a criminal conspiracy with them to kill the members of police party. 30. Supreme Court in V.C. Shukla v. State (Delhi Admn.) 1980 2 SCC 665 has held that: "(T)o prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. 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. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy". 31. Where the conspiracy alleged is with regard to commission of a crime there must be an agreement between the conspirators to commit the crime. In such cases, generally it is only circumstantial evidence from which any inference giving rise to conclusion of an agreement between two or more persons to commit an offence can be legitimately drawn. The circumstance, however, must be such that it leads to the only conclusion that accused must have entered into such a conspiracy with the other accused persons to commit the offence. No such conclusion can be drawn from the evidence produced by the prosecution in the present case. 32. In the absence of any evidence suggesting the hatching of criminal conspiracy, we find that the appellant could not have been convicted and sentenced with the aid of Section 120B or Section 109 RPC. No fact or circumstance with respect to the abetment attracting the applicability of Section 109, RPC has been brought to our notice. To prove the charge of abetment, the prosecution is required to prove that the abettor had instigated for the doing of a particular thing or engaged with one or more other person or persons in any conspiracy for the doing of that thing or intentionally aided by an act of illegal omission, doing of that thing. The prosecution has miserably failed to prove the existence of any of the ingredients of Section 107, RPC. The prosecution has miserably failed to prove the existence of any of the ingredients of Section 107, RPC. Merely because the accused raised hue and cry on seeing the police party would not necessarily mean that he abetted the commission of the crime particularly when it has come in evidence that his own family members were also inside the `dokh in which the militants were hiding. 33. Another circumstance which has altogether been ignored by the trial court and which in our view points out to the innocence of the appellant is that when the militants ran away from the spot, the appellant along with his wife and children remained there. If he was in league with the militants and if he had entered into any conspiracy he would not have remained there but would have run away from the spot along with the militants. 34. Offence under section 4 and 5 E.S.Act have been taken as proved on the mere recovery of RDX etc. from the dokh of the appellant but while doing so the court has lost sight of the fact that the militants were hiding in the house of the appellant and they had left in a hurry on seeing the police. In such circumstance it can easily be deduced that they had left the ammunition while fleeing from the spot. How can the appellant be held responsible for that? 35. Recovery of the RDX and battery etc. from the house of the appellant is also doubtful. It is said that immediately after the occurrence and when the militants left the spot, Constable Mool Chand accompanied by other constables went inside the house and found some material in a bag which according to them was RDX. Constable Mool Chand handed over the recovered material to the SHO. A seizure memo EXPW/2-MR/I was prepared which shows that the RDX was recovered from the house while as the fact, as narrated by the witnesses, is that the seizure memo was prepared only after the SHO reached the spot when RDX had already been recovered by the police party from the house. Seizure memo bears the signature of P.W Buta Singh and Chan Mohd. P.W Buta Singh has not been examined but P.W Chan Mohd has stated that he does not know whether the House from where the material was recovered belongs to the appellant. Seizure memo bears the signature of P.W Buta Singh and Chan Mohd. P.W Buta Singh has not been examined but P.W Chan Mohd has stated that he does not know whether the House from where the material was recovered belongs to the appellant. He has further stated that no sample was kept from the material for chemical examination. The prosecution has not produced any evidence to establish that this material was on chemical examination found to be RDX. Thus on mere assertion of the prosecution how can it be said that .the material was RDX or that this material was recovered from the appellants house. We do not find sufficient and satisfactory proof by the prosecution on this fact. 36. In the aforesaid circumstances the inevitable conclusion is that the prosecution has not been able to bring home the accusations beyond doubt so far as the appellant is concerned. Conviction and sentence as imposed by the trial court are, therefore, set aside. Appellant shall be set at liberty forthwith, if not required in any other case. The appeal is allowed.