Lindsay, J.:— These two appeals are connected and may be disposed of by one judgment. They have arisen out of a trial held in the Court of the Additional Sessions Judge of Bareilly in which three persons were concerned, namely Abdul Hamid Khan, Azadar Husain and Gulab Singh. Of these the first named was, in the month of August 1914, Sub-Inspector of the Jahanabad Police Circle in the Pilibhit District: the second accused, Azadar Husain, was at that time the Kotwal of Pilibhit, while Gulab Singh, the third accused, was the Prosecuting Inspector of the Pilibhit District. The case in which these three accused were implicated had its origin in certain events which took place in the Pilibhit District in the month of August; 1914, of which a short narrative may be given by way of introduction. It appears that on the night of 15th and 16th August 1914 a dacoity was committed in the house of one Tika Ram, the Station Master of Shahi one of the stations on the Rohilkhand and Kumaun Railway, situated a few miles away from Pilibhit. A report of this affair was made at the Jahanabad Police Station and an investigation was made by the Thanadar Abdul Hamid Khan and one of his assistant officers. No names of any of the offenders concerned were given to the police and no clue was obtained till the night of 25th August.

2. On the evening of that day the Kotwal of Pilibhit; the accused Azadar Husain made a capture of five parsons in a grove some little distance away from the town of Pilibhit. It is stated that this capture was made in consequence of some information previously received, to the effect that a number of criminals intended to meet together outside Pilibhit for the purpose of committing a dacoity. The police took action accordingly and lay in wait close to the snce. The five men who were arrested at the grove were Jahangir Khan, Gobre Singh, Tita, Chhote Singh and Mohan Lal, all of whom (except Mohan Lal) are residents of villages in the Shahjahanpur District which lie close to the railway station of Kuraya. At the time of the capture of these men two swords and a wooden fencing sword were found in their possession. It is stated that besides the five men mentioned several others were present, in the grove, who managed to escape when the police surrounded the spot: Shree of these were arrested late the same tight, namely, Bandhu Singh, Puttu Singh and Shib Singh. Of these three Bandhu is the brother of Ghhote Singh who had been caught in the bagh, and he was captured in the waiting room of the Pilibhit Railway station. It is said that Bandhu Singh gave information to the police which led to the arrest of the other two, Puttu Singh and Shib Singh, who were taken into custody just as they had taken their seats in a train which arrived at the Pilibhit station about 11 p.m The eight prisoners were taken to the kotwali police station where a charge under S. 402, I.P.C, was entered against them. Further information alleged to have been given by Bandhu Singh led to the arrest of three other men on the following day. These were Kanhaya Lal, Bania of Pilibhit, Kanhaya Brahman and a Goshain named Ratngir, who according to the story told by Bandhu had been concerned with himself and others in the Shahi dacoity. The Bania was arrested in the forenoon of 26th August and in consequence of a statement made by him a piece of a silver chain was found subsequently in the possession of one Narain Dhimar. The latter's story was to the effect that he had bought the chain from the. Bania this chain was later on identified as his property by the station master Tika Ram whose house had been raided on the night of the 15th-16th August Kanhaya Brahman is a gate-keeper on the railway at a level crossing a few miles from Pilibhit and he was arrested at his but on the evening of the 26th August after Ram Gir had been captured at or near the same place. Ram Gin, like Bandhu Singh, also made a statement by way of confession implicating himself and others in the Shahi and other dacoities, and the information given by him resulted in the arrest of five others said to have been engaged in the Shahi case. These were Pitam Singh, Dalli Singh, Bhima, Shah Nur and Ganesha. Following upon these arrests certain identification proceedings where held on various dates in the month of September in the Pilibhit Jail and eventually two cases were instituted, one under S. 402, I.P.C, against those who had been captured on the evening of the 25th August, and the; other under S. 395, I.P.C, against those persons and the others who were arrested later.

3. The charge under S. 395, I.P.C, related to the Shahi case. In both cases the accused were committed to the Court of Session, where the charges were withdrawn inconsequence of information having been obtained that the police had been guilty of malpractice for the purpose of obtaining false evidence of identification. It was discovered that photographs had been taken of seven out of the eight men arrested on the 25th August and it was supposed that the photographs had been improperly used in order to bring about the identifications in the Pilibhit Jail. After the charges had been withdrawn in the Sessions Court, steps were taken to obtain sanction for the prosecution of the Police Officers said to have been concerned in the manufacture of this false evidence and, after certain preliminary proceedings to which it is unnecessary to refer, an inquiry was held under the provisions of Section 478 of the Cr PC, by Mr. Burkitt, Additional Sessions Judge of Bareilly. Two separate cases were put before Mr. Burkitt. In one he was asked to find that the charge under S. 402, I.P.C, which had been laid against the men arrested on the 25th August, was a false charge either wholly or in part; in the other he was invited to hold that false evidence had been fabricated for the purpose of procuring identification of those who had been charged with complicity in the Shahi dacoity. The learned Judge rejected the application made for sanction in connection with the case under S. 402, I.P.C He held that the bulk of the evidence put before him in order to show that the S. 402 case was a bogus case, was obviously false. With regard to the application in connection with the Shahi case he came to the conclusion that there was strong evidence to show that seven of the men arrested on the 25th August had been photographed in the Pilibhit Kotwali on the 26th August, that the kotwali and the Prosecuting Inspector were concerned in the taking of the photographs: and that the photographs had been made in pursuance of a conspiracy entered into between these two officers and Sub-Inspector Abdul Hamid Khan, the object of which was to secure false evidence for the purpose of proving that the seven persons whose photographs had been taken took part in the dacoity committed at Shabi on the night of the 15th-16th August 1914.

4. Mr. Burkitt accordingly drew up two charges against the three Police Officers Abdul Hamid Khan, Azadar Husain and Gulab Singh. One charge was that they had on or about the 26th August 1914 agreed to do an illegal act, namely to bring a false charge of dacoity against the seven men photographed. The offence laid in this charge was punishable under S. 211 read with S. 120B, I.P.C The other charge was one of having agreed to fabricate false evidence against the same seven men, amounting to an offence punishable under S. 195, I.P.C, read with S. 120-B. Both charges, it is to be observed, related exclusively to the Shahi dacoity case, in other words, it was imputed that the accusation of having been engaged in the Shabi dacoity was a false accusation and that false evidence to support this false accusation had been procured by the three Police Officers. The officers were committed for trial on these two changes framed by Mr. Burkitt and they were tried by Mr. Jenkins. Additional Judge, with the result that Abdul Hamid Khan and Azadar Husain were acquit, ted on both counts. Gulab Singh was also acquitted on both the charges framed against him but was convicted under S. 195, I.P.C, read with S. 511, I.P.C, the learned Judge being of opinion that the photographs of the seven men had been taken by Gulab Singh “for facilitating the identification of the accused in dacoity cases”. The learned Judge further held, to quote the words of his judgment, that it is

“not proved that Azadar Husain or Abdul Hamid conspired with Gulab Singh either to take or to use the photographs, and that there is no proof that the photos were used for the purpose for which they were prepared.”

5. We are no longer concerned with any case against Abdul Hamid Khan; there is no appeal against the order of acquittal passed in his case. We have an appeal (No. 813 of 1915) on behal of Gulab Singh challenging the order of conviction; and in the case of Azadar Husain we have an appeal on behalf of the Local Government (No. 942 of 1915), the case for the Government being that Azadar Husain should, upon the evidenc recorded, have been convicted under Ss. 195 and 120-B, I.P.C It will, we think, be most convenient to deal in the first place with the appeal of Gulab Singh, and the first matter for consideration in this connection is the genuineness of two pieces of material evidence, namely, two photographs Exs. Y-1 and Y-2. Gulab Singh's defence in the Court below was that these photographs had not been taken by him he denied all knowledge of them and suggested the possibility of their having been fabricated, that is to say, he pleaded that although the photographs presented the appearance of having been taken outside the kotwali building at Pilibhit, they might in fact have been taken elsewhere in the first instance and might have been afterwards re-printed against a background obtained by taking a genuine photograph of the wall of the kotwali building. This part of the defence was rejected by the learned Judge, who came to the conclusion upon certain evidence led in this respect that the photographs Ex. Y1 and Y2 were originals and that in fact they had been taken at the spot represented in them, namely, the back wall of the kotwali building. When Gulab Singh's appeal came up first for hearing in January last, an application supported by an affidavit was filed by his learned Counsel representing that since the date of his conviction Gulab Singh had obtained certain information to the effect that these photographs were composite productions and had been manufactured by a certain photographer named Parsi Sah, who appears to carry on business at Naini Tal, Bareilly and Lucknow. It was stated that this information had been obtained by Gulab Singh through the medium of advertisement inserted in the “Advocate”, a newspaper published at Lucknow, and the Court was asked to adjourn the hearing of the case to allow of the taking of additional evidence. This request was acceded to, the additional evidence was taken before Mr. Burkitt, the additional Sessions Judge, and includes certain evidence tendered by the Crown by way of rebuttal of the statement of Parsi Sah, the principal additional witness on behalf of accused appellant Gulab Singh.

6. The learned advocate who has now argued the appeal of Gulab Singh has not pressed this evidence upon our notice, and wisely so, for a perusal of it convinces us that the statement of Parsi Sah, which was intended to lead the Court to believe that the photographs Ex. Y1 and Y2 were composite photographs and his handiwork, is false from beginning to end. The evidence of Mr. S.P Sanyal, formerly Editor of the Advocate newspaper, establishes conclusively that the advertisement inserted by Gulab Singh in his paper which was represented to have resulted in the discovery of Parsi Sah as a witness able to give exculpatory evidence on behalf of Gulab Singh was drawn up by Gulab Singh in the office of the newspaper in the presence of Parsi Sah. In short the advertisement was a bogus affair concocted by Gulab Singh and this photographer and there can, we think, be no manner of doubt that Parsi Sah who, it is proved, was well known to Gulab Singh, has been suborned by the latter to give false evidence in order to sesure his acquittal. We may add that the expert evidence of Lieutenant Hort who was examined by the Crown proves to our satisfaction that Exs. Y1 and Y2 are original and genuine photographs. It follows, therefore, that we must take it that the photographs Ex. Y1 and Y2 were taken in the precincts of the Pilibhit Kotwali and that the seven men whose pictures appear in them were ranged for the purpose of being photographed in front of the back wall of the kotwali building. One other fact must also be taken to be conclusively established, namely, that both photographs must have been taken at some time before noon on 26th of August 1914. They could not for want of light, have been taken on the night of 25th and it is proved that the seven men were removed from the kotwali about noon on 26th and were taken, after a remand by the Magistrate, to the Pilibhit Jail.

7. There is nothing whatever to show that they were ever again taken back to the kotwali. His Lordship, after discussing the evidence which was led to connect Gulab Singh with the taking of the photographs, proceeded. We are unable to hold that on this evidence it can be affirmed that Gulab Singh took the photographs Exs. Y1 and Y2 and this being so, the case against Gulab Singh was not proved. Before concluding the discussion of the case against Gulab Singh, we have to refer to the argument put forward by his learned Counsel to the effect that even on the facts found by the learned Judge, Gulab Singh was not in law guilty of the offence of which he was convicted. It has been mentioned already that the conviction is in respect of an offence which was no charged. The charge in respect of the photographs was one of conspiracy: it was alleged that Gulab Singh had agreed with the Kotwal and Abdul Hamid Khan to fabricate false evidence for the purpose of obtaining convictions in the Shahi dacoity case. On the findings of the Judge with respect to the Kotwal and Abdul Hamid it was not possible to convict Gulab Singh on the charge as framed. But the learned Judge being convinced that Gulab Singh had taken the photograph, held that he was guilty of an attempt to commit the offence of fabricating false evidence, not for the purpose of obtaining a conviction in the Shahi case, but in order to obtain convictions in certain dacoity cases not specified. It is stated definitely in the judgment that the prosecution had failed to show to what use the photographs were put or were intended to be put. It is also stated definitely that there was no evidence from which it could legitimately be inferred that these photographs had been used so as to bring about the identification of any of the accused who were alleged to have been concerned in the Shahi case. The learned Judge surmises that the photographs may have been taken by Gulab Singh and distributed by him to the various Police Officers who were interested in the investigation of the numerous dacoity cases, in connection with which the identification proceedings were held in the jail on various dates in September 1914. And he adds in his judgment that:

“the existence of these hpotographs makes one suspect that there may have been a plan to have the photographed men identified by means of these photos”

8. He then proceeds to the conclusion that it was

“most probable that the photographs were intended to be used to work out certain cases in which there was otherwise not the slightest hope of obtaining evidence against any one”

9. It seems, therefore, that the Judge, while satisfied that Gulab Singh was the author of the photographs, was unable to arrive at any definite conclusion regarding the purpose for which they were taken and it is difficult to understand how in this state of affairs it can be predicated that the act of taking the photographs amounted to an attempt to fabricate false evidence. Turning to the language of S. 511 I.P.C, we find that the liability to punishment arises out of the doing of an act “towards the commission of the offence”, such act being done in the course of an attempt to commit the offence or to cause it to be committed. The offence which it is said Gulab Singh was attempting to commit was the offence of fabricating false evidence of identification: he had formed the intention of procuring witnesses by means of these photographs to swear falsely that they recognised one or other of the men in the photographs as persons whom they had actually seen committing the offenca of dacoity. Can it be said then that the taking of the photographs by Gulab Singh was an act done “towards the commission of the offence”. According to the judgment no such definite quality is attributed to the act; the learned Judge can go no further than to say that he surmises or thinks it very probable that the photographs may have been taken with a view to the procuring of false evidence. But that is not enough to justify a conviction for attempt. The quality of the act can only be estimated in the light of the surrounding circumstances. It cannot, we think, be inferred from any of the events which preceded the taking of the photographs that the intention was to use them for an unlawful purpose and it is admitted that there is no evidence afforded by subsequent events to justify the conclusion that they were so used or intended to be used. Ordinarily the act of taking a photograph is an innocent act which cannot be deemed to import an intention of using the product of the act for an illegal purpose. It has been pointed out, however, that under the rules of the Police Department the taking of photograph of under trial prisoners is prohibited and that consequently the act ascribed to Gulab Singh was not an innocent act. But while in the circumstances we may attribute to Gulab Singh the knowledge that he was doing wrong by transgressing a rule of conduct of his department, we cannot in the absence of other evidence go further and hold that his intention necessarily was to use the photographs for the purpose of fabricating fake evidence.

10. We find, therefore, that even if it be assumed to be proved that Gulab Singh took the photographs Ex. Y, 1 and Y2, he could not on the evidence before us be convicted of an attempt to fabricate false evidence. We allow his appeal and setting aside the conviction and sentence direct that he be acquitted and released.

11. His Lordships then dealt with the appeal preferred by the Government against Azadar Hussain and concluded as follows: Our consideration of the evidence in the case leads to the conclusion that there could be no justification for our interfering with the order acquitting Azadar Husain and we dismiss the appeal against him accordingly.

Knox, J.:— I have had the opportunity of reading and considering what my brother Lindsay has written in his judgment about this case. I only wish to add (1) that I fully agree with him in his finding about the facts of the case. The evidence given to prove that Azadar Husain joined Gulab Singh in taking the photographs (Y-1 and Y-2) is so unreliable that it can sustain no finding to that effect. But even if it were reliable evidence it would fall short of proof of the offences charged. The charges on which he was tried were (1) that he with Gulab Singh and Abdul Hamid did agree to do an illegal act to wit, to bring a false charge of having committed dacoity at Shahi against Jahangir Khan and others, knowing that there was no just and lawful ground for such charge and thereby committed an offence punishable under S. 211/120-B, I.P.C; (2) that he with Gulab Singh and Abdul Hamid did agree to do an illegal act, to wit, to fabricate false evidence of having committed a dacoity at Shahi against Jahangir, intending thereby to cause the said persons to be convicted of the offence of dacoity, and thereby committed an offence punishable under Ss. 195/120-B, I.P.C The Crown never attempted to prove with reference to the Shahi dacoity that the three accused went one step further than taking the photographs Y-1 and Y2 on 26th August 1914. No one of the Crown witnesses even suggests that the photographs were shown to any of the witnesses in the Shahi dacoity case and as the evidence shows there was no necessity for the taking of any such step; no witness suggests that they saw or heard of any agreement between the accused with reference to that case. It was pointed out by Wills, J., in Mulcahy v. Queen (1) that

“a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against peomise actus contra actum, capable of being enforced, if lawful, punishable if for a criminal objector for the use of criminal means and so far as proof goes, conspiracy, as Grose, J., said in Rex v. Brissao (2), is generally matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.”

12. This is in consonance with the language in S. 120-A, I.P.C On behalf the Crown, however, while it was admitted that proof of mental agreement was a necessary ingredient, still it was contended that ingredient of the offence was generally an inference from the collateral circumstances of the case. In support of this, reference was made to Russell on Crimes, 7th Edition, Vol. 1, p. 191. In Reg v. Murphy (3) Coleridge, J., did use the expression. But the error in the argument; addressed to us lies in divorcing one text of his Lord ship's judgment from the context. The judgment went on to say:

“It is not necessary to prove any direct concert, or even any meeting of the conspirators, as the actual fact of conspiracy may be collected from the collateral circumstances of the case. Although the common design is the not of the charge, it is not necessary to prove that the defendants came together, and actually agree in terms to have the common design, and to pursue it by common means, and so to carry it into execution, for in many cases of the most clearly established conspiracies there are no means of proving any such thing. If therefore, two persons pursue by their acts the same object, often by the same means; one performing one part of an act, and the other another part of the same act, so as to complete it with a view to the attainment of the common object they were pursuing, the Jury are free to infer that they have been engaged in a conspiracy to effect that object.”

13. Similarly in Regina v. Duffield (4) Erie, J., in addressing the Jury pointed out that the essence of the offence of the conspiracy was the combination to carryout an unlawful purpose and went on to say:

“Although that be the essence of the offence, it does not happen once in a thousand times., when the offence of conspiracy is tried, that anybody comes before the Jury to say: ‘I was present at the time when these parties did conspire together, and when they agreed to cannot their unlawful purposes;’ that species of evidence is hardly ever to be adduced before a Jury, but the unlawful combination and conspiracy is to be inferred from the conduct of the parties, and if you see several men taking several steps, all tending towards one obvious purpose, and yousee them through a continued portion of time taking steps that led to an end, why, it is for you to say whether those parsons had not combined together to bring about that end, which their conduct so obviously appears adapted to effectuate.”

14. In the case before us all that has been asserted by the prosecution evidence is that three persons joined in taking a couple of photographs, one taking the photographs the second arranging the camera and the third arranging the prisoners. It is not a case where several men are proved to have taken several steps tending to one obvious purpose and through a continued portion of time, taking steps that lead to an end. It seems to me much as if the prosecution, getting information by anonymous letters or otherwise that certain persons were concerned in committing arson, ask the Court to infer that there was a conspiracy to commit arson merely because in the pockets of the alleged conspirators certain boxes of matches were found or that they were proved to have purchased matches. Or to take a case more cognate to the present one, if the prosecution were to ask a Court so find persons guilty of a conspiracy to commit an offence under section 122 of the Indian Penal Code and go no further in proof than to show that persons not licensed to carry arms had, one of them a stand of arms in his house, another ammunition and so forth. It may, however, be contended that where there is no evidence that persons have joined in concerting a plan or that they never met the other conspirators, they may still be found guilty of a conspiracy but in such a case, as pointed out by Coleridge, J., in Regina v. Murphy , there must be a joining afterwords to execute one common object to the injury of a parson. There is no such joining in a common purpose proved in the present case. There is another fact which both sides appear to have overlooked, and that is that when Abdul Hamid and Azadar Husain were acquitted of the offence charged the conviction of Gulab Singh for conspiracy ipso facto fell to the ground. There cannot be a conspiracy of one. In the Queen v. Manning (5), Lord Coleridge held:

“In case of an indictment for conspiracy, when two people are indieted and are tried together, either both must be convicted or both must be acquitted. That seems to me to have been determined, or, if not determined, taken for granted from very early times.”

15. In the King v. Plummer (6) the learned Judges went so far as to hold

“That, where two or more persons are charged in the same indictment with conspiracy with one another, and the indictment contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a Jury or upon his own confession.”

16. It shows how necessary, in a prosecution for conspiracy, it is to prove that there were two or more parsons, agreeing for the purposes of the conspiracy. These last remarks refer particularly to the case of Gulab Singh, but I have inserted them here as it is intended to pass only one judgment in the two cases. So for as Gulab Singh was concerned there was nothing in the charge setting out conspiracy with others or unknown persons over and above Azadar Husain and Abdul Hamid, and a conviction on the offence charged would have been illegal.

17. For these reasons, both because no agreement to do or cause to be dona an illegal act has been proved either by direct evidence or by a combination of circumstances from which such an inference can be properly drawn and also because the evidence upon the record which has been given to prove a concert between Azadar Husain, Gulab Singh and Abdul Hamid is of such a doubtful character, I agree with my brother in holding that this Government appeal against Azdar Husain must be and is hereby dismissed. For the same reasons I hold that the appeal of Gulab Singh, Criminal Appeal No. 813 of 1915, must be and is allowed. Neither this offence is charged nor the offence of which he was found guilty was proved against him and the sentence is set aside. He is out on bail and the bail-bond is discharged.

18. By the Court.—The appeal of Gulab Singh is allowed and the conviction and the sentence passed upon him or set aside and it is directed that he being already out on bail, the bail bond be discharged. The Government appeal against Azadar Husain is dismissed and the order of acquittal passed by the Additional Sessions Judge of Bareilly upheld.

19. Conviction set aside.