In this blog post, I will discuss the most important angle of criminal conspiracy in the Binayak Sen judgment. The conspiracy has been held to be proved against Binayak Sen. He has been held guilty under section 124A IPC read with Sec 120B IPC for conspiring with Narayan Sanyal and Pijush Guha in spreading hatred against the state. The evidence is certain letters held to be written by Sanyal. These letters were held to be found in the possession of Guha. Sen has been held to be the courier from Sanyal to Guha. There are some other documentary materials found to be in possession of Sen and Guha, but the letters written by Sanyal are the biggest evidence because other material per se may not stand the test of the Kedarnath judgment.

Vide para 112 of the Binayak Sen judgment, the conspiracy has been proved by two set of facts. By the fact of movement of letters from Sanyal to Guha via Sen, and by the fact of pre-existing relationship between Sanyal and Sen. Out of these, Sen acting as the courier is the material evidence as existing relationship per se doesn’t mean anything.

As far as the fact of Sen being a courier of Sanyal is concerned, it has been proved by two types of evidence:

1. By the circumstantial evidence of meetings between Sen and Sanyal in the jail linked with the forensic evidence of the letters written by Sanyal found in the possession of Guha.
2. By the corroborative evidence of the witness of Anil Singh, who heard Guha stating it in the presence of the police officer that the said letters were delivered by Sen to Guha.

Vide Para 16 of the Binayak Sen judgment, the objection of the defence counsel wrt the testimony of Anil Singh being inadmissible has been overuled. It has been found to be relevant under sections 8, 10, 17 and 21 of the Indian Evidence Act, 1872. Here, section 10 is more important. The evidence found relevant under sections 17 and 21 is inadmissible as it is hearsay evidence, and the evidence found relevant under section 8 is inconsequential without proving the main facts. So, the evidence found relevant under section 10 is the only relevant evidence. But, the evidence under section 10 is admissible subject to the proof of the prima-facie conspiracy.

Vide para 112 of the Binayak Sen judgment, the fact of Sen acting as a courier has been used as the main fact to prove the “unity of mind”. As already stated, the evidence led to prove pre-exisiting links of Sen with Sanyal and others doesn’t prove any pre-existing conspiracy.

Vide para 27 of the Binayak Sen judgment, the linkage of Guha with naxals has been proved on the basis of an FIR. No other evidence has been produced. This once again is a very weak evidence of the involvement of Guha in naxal activities. Even the evidence against Sanyal is also very weak. Most of the evidence against him are general opinions, not factual statements, of police officers about his involvement in naxal activities and/or naxal groups. These opinions are inadmissible.

The strongest evidence against Sanyal is that of some intelligence report prepared by the Andhra Pradesh police, but nothing much has been said about it in the judgment. That is, whether the facts mentioned in the report were proved by the examination of the officers. The announcement of award against Sanyal by the Andhra Pradesh government is no proof of his involvement in naxal activities. Evidence against Sen is the weakest, all of it being either hearsay or opinions.

Subject to the belief in the finding of the judge that the affidavit filed by the prosecution in the supreme court was a genuine typological mistake, the letters written by Sanyal have been proved. It is also true that Guha has not been able to prove the bonafide source of possession of the letters. But, the prosecution has not been able to arrange the missing links. It seems Sen’s name has been added just to somehow solve the puzzle, and the story has turned out worse than a third grade Bollywood movie.

©2010 Ankur Mutreja