The State Of Jharkhand Through ... vs Saryudhar Yadav
2023 Latest Caselaw 2973 Jhar

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Criminal Appellate Jurisdiction)

                       Acquittal Appeal (DB) No. 23 of 2020

The State of Jharkhand through D.C. Koderma, P.O. and P. S.-Koderma,
District- Koderma.                                           ....... Appellant
                                   Versus
1. Saryudhar Yadav, son of late Gajo Yadav, Resident of village- Alakhdiha,
P.O. and P.S.-Jainagar, District-Kodarma.
2. Manoj Yadav, son of Ganga Prasad Yadav, Resident of village-Bind, P.O.
and P.S.-Bagodar, District- Giridih.                    ....... Respondents

                                 With
                   Criminal Appeal (V) No. 07 of 2019

Arvind Kumar, son of Sri Dev Narayan Chandr Yadav, Resident of village-
Alkhdiha, P.O+P.S- Jainagar, District-Kodarma.               ....... Appellant
                                    Versus
1. The State of Jharkhand
2. Saryudhar Yadav, son of late Gajo Yadav, Resident of village- Alkhdiha,
P.O. + P.S.- Jainagar, District-Kodarma.
3. Manoj Yadav, son of Ganga Prasad Yadav, Resident of village- Bind, P.O.
+ P.S.- Bagodar, District- Giridih.                    ....... Respondents
                                     With
                 Criminal Appeal (DB) No. 787 of 2019

Saryudhar Yadav, son of late Gajo Yadav, Resident of village- Alagdiha,
P.O.-Makatpur, P.S.- Jainagar, District-Kodarma, Jharkhand ....... Appellant
                                  Versus
State of Jharkhand                                       ....... Respondent
                                    With
                Criminal Appeal (DB) No. 801 of 2019

Manoj Yadav, son of Gangadhar Prasad Yadav, Resident of village- Bind,
Dharguti, P.O.- Dhargali, P.S.-Bagodar, District- Giridih.
                                                              ....... Appellant
                                  Versus
The State of Jharkhand                                     ...... Respondent


CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
     HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
                        ------

For the Appellant(s)      : Mr. B.M. Tripathi, Sr. Advocate
                            Mr. Naveen Kumar Jaiswal, Advocate
                           [in Cr. App.(DB) No.787 of 2019]
                           Mr. Vijay Kumar Roy, Advocate
                           [in Cr. App.(DB) No.801 of 2019]
For the State             : Ms. Anuradha Sahay, APP
                           [in Cr. App.(DB) No.787 of 2019]
                           Mr. Ravi Prakash, Spl. PP
                                    2    Acq. Appeal (DB) No.23 of 2020 & analogous cases


                          [in Cr.App. (DB) No.801 of 2019]
For the Informant        : Mr. Ganesh Pathak, Advocate
                           JUDGMENT

C.A.V on 01/08/2023                                 Pronounced on 18/08/2023
Per, Shree Chandrashekhar, J.

The State of Jharkhand which is the appellant in Acquittal Appeal (DB) No. 23 of 2020 and Arvind Kumar who is the informant of Jainagar PS Case No. 193 of 2014 and filed Criminal Appeal (V) No. 07 of 2019 are aggrieved by the judgment of acquittal of Saryudhar Yadav and Manoj Yadav under section 302/34 of the Indian Penal Code, section 27 of the Arms Act and section 3 of the Explosive Substance Act passed in ST No. 56 of 2015 by the Additional Sessions Judge-II, Koderma.

2. Saryudhar Yadav and Manoj Yadav have filed separate criminal appeal(s) vide Criminal Appeal (DB) No. 787 of 2019 and Criminal Appeal (DB) No. 801 of 2019 respectively against their conviction and sentence awarded to them under section 120-B of the Indian Penal Code.

3. On the basis of the fardbeyan of Arvind Kumar which was recorded around 08:00 PM on 15th October 2014 at Sadar Hospital Koderma, a First Information Report was lodged. The informant stated that around 06:15 PM in the evening four unknown miscreants came on two motorcycles at his Alagdiha shop and threatened all present there to leave. The unknown miscreants started slapping his brother and when he raised objection one of the miscreants fired at his face. The other miscreants exploded bomb and escaped on the motorcycles. Sunil Kumar who is brother of the informant succumbed to the injuries and died on 15 th October 2014. Jainagar PS Case No. 193 of 2014 was lodged under section 302/34 of the Indian Penal Code against four unknown assailants. However, in course of the investigation, Binod Yadav, Sunita Devi, Chhotu Kumar and Saraswati Devi provided some information to the investigating officer and on that basis Saryudhar Yadav and Manoj Yadav were sent up for trial and they faced the trial on the charge under sections 302/34 and 120-B of the Indian Penal Code, section 27 of the Arms Act and section 3 of the Explosive Substance Act - charge under section 120-B of the Indian Penal Code was added on 15th March 2019.

3 Acq. Appeal (DB) No.23 of 2020 & analogous cases

4. Altogether 24 witnesses came to the Court to support the prosecution case against Saryudhar Yadav and Manoj Yadav but four of them namely, Tuklal Das, Anita Devi, Parvati Devi and Gajo Das resiled from their previous statements made before the police. The trial Judge noticed that there was no whisper about the involvement of the accused in the crime at the initial stage and except PW5 and PW7 no prosecution witness has deposed anything incriminating against the accused. Finally, the trial Judge held that the prosecution has failed to establish the charge of murder of Sunil Kumar in furtherance of common intention. However, the trial Judge held that the charge under section 120-B of the Indian Penal Code against Saryudhar Yadav and Manoj Yadav is proved.

5. In ST No.56 of 2015, the learned Additional Sessions Judge-II, Koderma has held as under:

"33. Whether the accused persons were the assailants?

Occurrence was happened in the evening and it was lodged against four unknown assailants and as a matter of fact, there is no whisper regarding involvement of accused persons facing trial in this case in the FIR. The I.O. in his deposition has admitted that during investigation, he could not come to know about the four unknown miscreants. PWs 1, 3, 5, 7, 10 and 11 are the eye witnesses of the occurrence who had seen the assailants firing shot on the head area of the deceased whereas PW2 & PW14 reached at the P.O after hearing sound of fire shot and he saw four miscreants fleeing away from the spot on two motorcycles. None of these witnesses except PW5 & PW7, the mother of the deceased has deposed about the presence of the accused persons facing trial in this case at the shop of the deceased as assailants and they have not stated about any overt act done by them during the commission of crime. PW5 has deposed that out of four assailants, he identified the accused persons facing trial in this case but the fire shot was done by two unknown assailants whereas, PW7 has deposed that accused Manoj Yadav fired shot on her son. PW7, however, in her cross- examination at para 44 she has stated that the police had not got identified accused Manoj Yadav by her. At para 57, she deposed that she cannot say who had fired shot. At para 58, she deposed that she had seen four assailants but she had not identified them because of her weak eyesight. Other material witnesses have not deposed about the presence and participation of accused persons facing trial in this case as real assailants who killed the deceased in his shop. In the facts & circumstances of the case, it appears to me that PW5 & PW7 have exaggerated the prosecution version for the reason best known to them and their evidence on that point is not reliable as such on the basis of available evidence, I have no hesitation to hold that accused persons facing trial were not the assailants.

34. Circumstantial evidence & charge u/s 120(B) of IPC:

The chargesheet against the accused persons was submitted u/s 120(B) of IPC along with other penal sections of IPC, Arms Act & Explosive Substance Act and the cognizance was taken accordingly.

However, the learned predecessor did not opt to frame charge u/s 120(B) of IPC against the accused persons and lateron after recording the evidence of the witnesses, a petition was filed on behalf of the prosecution to add the charge u/s 120(B) of IPC and consequently on 15.7.19, the charge u/s 120(B) of IPC was framed against the accused persons. The 4 Acq. Appeal (DB) No.23 of 2020 & analogous cases

essential ingredients for the offence of criminal conspiracy defined in Sec. 120A of IPC, is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution against the party of the conspiracy because in such a situation criminal conspiracy is established by proving such an agreement. In the case reported in 2011(5) Scale 412 it was held that where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplates in sub-section (2) of S. 120(A) of IPC then in that event mere proof of an agreement between the accused for commission of such offence is enough to bring about a conviction u/s 120(B) and the overt act done by the accused or by any one of them would not be necessary.

35. It is a settled law that in order to establish the charge u/s 120(B) of IPC there must be an agreement between the persons who are alleged to conspire and such agreement should be for doing of an illegal act or for doing by illegal means and act which by itself may not be illegal. The essence of criminal conspiracy is an agreement to do an illegal agreement such agreement can be proved either by direct evidence or by circumstantial evidence or by both. Direct evidence to prove conspiracy is rarely available but circumstances proves before and after the occurrence have to be considered to decide about the complicity of the accused. If some acts are proved to have completed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Privacy and secrecy are more characteristics of a conspiracy than of a loud discussion in public view.

...................................................................................................................... ......................................................................................................................

39. The assailants who actually committed the murder of the deceased were not detected and seen in the company of the accused persons hatching conspiracy at any point of time even though, on the basis of the incriminating circumstances available on record pointing towards both accused persons, a reasonable inference can be drawn that both the accused persons hatched criminal conspiracy and they hired goons for implementing their design i.e. to do away with the life of the deceased Sunil Kumar who was known enemy of the accused. The responsibility of the conspirators extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose which is in this case was to murder the deceased Sunil Kumar. In the case reported in AIR 1956 SC 469, it was held that "it is not essential that more than one accused should be convicted of the offence of criminal conspiracy. It is enough if the Court is in a position to find that two or more persons were actually concerned in criminal conspiracy,"

In the facts & circumstances of this case, merely because the assailants have not found during trial in this case, in my opinion, the accused persons cannot be absolved from the charge of criminal conspiracy.

40. Other charges:

As discussed above, there is no direct involvement of the accused persons as real assailants of the crime, they were neither carrying bomb nor arms & ammunition in the shop of the deceased and there is no evidence on record to suggest that they had facilitated the explosives and arms to the assailants. The charge u/s 27 of the Arms Act and Section 3 of the Explosive Substance Act has miserably failed against the accused facing trial in this case. They were also charged for offence u/s 302/34 of IPC but instead I find them guilty for committing offence u/s 120(B) of IPC.

Result

41. I hereby hold Accused persons named, Saryudhar Yadav and Manoj Yadav guilty for committing offence u/s 120(B) of IPC and accordingly, they are convicted thereunder. However, they are acquitted of 5 Acq. Appeal (DB) No.23 of 2020 & analogous cases

the charge u/ss 302/34 IPC, 27 Arms Act and 3 of Explosive Substance Act. Their bail bonds are rescinded and they are taken into judicial custody."

6. The powers of the High Court under section 378 of the Code of Criminal Procedure are very wide and acting as an appellate Court the High Court may reappreciate the evidence, record its independent findings and may come to a different conclusion. The provisions under the Code of Criminal Procedure do not put any limitation on the powers of the appellate Court in dealing with the appeal against acquittal. However, as a rule of prudence certain restraints have been prescribed which the appellate Court should keep in mind. This is a well-settled law that the High Court while acting as the appellate Court shall not interfere with the judgment of acquittal unless there are compelling circumstances to do so. In "Harbans Singh"1 the Hon'ble Supreme Court has observed that in an acquittal appeal the High Court should examine the questions of law and fact and keep in mind the reasons which impelled the lower Courts to acquit the accused. In "Ghurey Lal"2 the Hon'ble Supreme Court again observed that the appellate Court in dealing with the cases in which the trial Courts have acquitted the accused should bear in mind that the trial Court's acquittal bolsters the presumption that the accused is innocent.

7. In "Ghurey Lal"2 the Hon'ble Supreme Court has observed as under :

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong."

8. Dr. Suresh Prasad Gupta deposed in the Court that on 15 th October 2014 the Medical Board consisting of him, Dr. Raman Kumar and Dr. B. P. Sinha (D.S) conducted an autopsy over the dead body of Sunil 1 Harbans Singh v. State of Punjab: AIR 1962 SC 439

2 Ghurey Lal v. State of U.P: (2008) 10 SCC 450 6 Acq. Appeal (DB) No.23 of 2020 & analogous cases

Kumar and found the following injuries:

External Injuries:

1. One oval deep perforating wound sized 1.25 Cm x 1 Cm on lateral part of right infra orbital region on right fact. Edge (margin) of wound - abraided and develled inside (inverted)- abrasion collar, Blackening and tattooing spreaded all over the right side of face, nose,upper part of neck-entrywound

2. 4 cm x 1.25 cm x bone deep lacerated and splited wound with everted and irregular edged wound margin stained with fresh blood on right parotid region, Anterior to ear and below right temple of right face- exit wound

3. No other injuries seen on other part of body.

Opinion of doctor:

(i) Probable time since death (keep all factors including observations at inquest.) within 4 hours.

(ii) Cause & manner of death - The cause of death to the best of my knowledge and belief is :-

(a) Immediate Cause- Hemorrhage & shock.

(b) Due to - Deep facial injury & base of skull

(c) Which of the injuries are ante-mortem/post-mortem and duration if ante-mortem ?- Ante-mortem.

(d) Manner of causation of injuries - Un-natural - might be homicidal due to some fire arm.

(e) Whether injuries (individually or collectively) are sufficient to cause death in ordinary course of nature or not ? Yes

(iii) Any other - No foreign body/projectile found into the body.

9. There is no dispute that Sunil Kumar suffered homicidal death due to firearm injury. To this extent, the prosecution has proved its case but the issue before the trial Court was whether he was killed in furtherance of common intention and criminal conspiracy hatched by Saryudhar Yadav and Manoj Yadav with two unknown miscreants. According to the prosecution, PW1 Binod Yadav, PW5 Chhotu Kumar and PW10 Laxman Yadav who are the co-villagers, PW3 Sunita Devi who is the sister-in-law, PW4 Kavita Devi who is the wife and PW7 Saraswati Devi who is the mother of Sunil Kumar are the witnesses who could see the assailants.

10. There is no bar in law in examining an inimical, interested or related witness by a party to support his case. A witness may be closely related to the victim or inimical to the accused but on that ground his testimony cannot be treated as tainted. When a crime is committed in the circumstances as described by the witnesses in the present case the family members and co-villagers are the natural and competent witnesses. In "Masalti"3 the Hon'ble Supreme Court has cautioned that mechanical rejection of evidence of interested witnesses on the sole ground that it is partisan would invariably lead to failure of justice. In "Sucha Singh"4 the Hon'ble Supreme Court has held that relationship is not a factor to affect

3 Masalti v. State of U.P : AIR 1965 SC 202 4 Sucha Singh and Another v. State of Punjab : (2003) 7 SCC 643 7 Acq. Appeal (DB) No.23 of 2020 & analogous cases

credibility of a witness, for it is more often that the relatives would not conceal the actual culprit and make allegation against an innocent person. However, there is another rule of caution that wherever it is shown to the Court that the parties are at loggerheads, this puts the criminal Court on guard to scrutinize the testimony of an interested/inimical witness with due care and caution.

11. In "Ramashish Rai"5 the Hon'ble Supreme Court has observed as under :

"7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. ..."

12. PW1 claimed that he was present near the PDS shop around 06:15 PM on 15th October 2014. According to him, four unknown persons came on motorcycles and one of them made inquiries about Sunil Kumar and he went inside the shop and slapped Sunil Kumar. He further stated that the said accused became angry when Sunil Kumar made objection and fired at him. However, PW1 admitted in the Court that Saryudhar Yadav was not present at the place of occurrence. PW2 is younger brother of the deceased and he has also not stated that Saryudhar Yadav and Manoj Yadav were with other two unknown miscreants one of whom fired a shot at his brother. PW2 seems to have been examined to prove motive for the crime. This witness has stated in the Court that sometime back Saryudhar Yadav had issued a threat to his brother when a dispute as regards a Tender had cropped up. He further stated that later on he came to know that on the day prior to the day of occurrence Manoj Yadav had visited Saryudhar Yadav and had food with him. This witness has however admitted in the cross-examination that at the time of the occurrence he was not at the shop and on hearing the bomb explosion he went there. He has further admitted that there was no clue as to who killed his brother. PW3 is wife of the informant. She was at home when she heard the sound of bomb explosion. She went to the shop on hearing hulla and found four unknown persons inside the shop who started slapping Sunil Kumar and shot him dead. She has stated about the enmity between

5 Ramashish Rai v. Jagdish Singh : (2005) 10 SCC 498 8 Acq. Appeal (DB) No.23 of 2020 & analogous cases

Sunil Kumar and Saryudhar Yadav but nowhere in her deposition she has even indicated that Saryudhar Yadav or Manoj Yadav were present at the place of occurrence. PW3 admitted in her cross-examination that the quarrel which took place between Saryudhar Yadav and Sunil Kumar had happened about 7-8 years in the past. PW4 is wife of the deceased who has also spoken about a dispute between Saryudhar Yadav and her husband. She has stated that Saryudhar Yadav was unhappy because in the election for Ward member her family did not extend support to his sister-in-law who was one of the candidates and that was the reason for animosity between them. She has also stated that she had expressed her doubt before the investigating officer that she suspected complicity of Saryudhar Yadav in the murder of her husband.

13. We have examined the testimony of these witnesses keeping in mind the care and caution as indicated in "Masalti"3 and "Ramashish Rai"5, but except for a doubt expressed by PW4, there is nothing in the testimony of these witnesses to implicate Saryudhar Yadav and Manoj Yadav in the murder of Sunil Kumar. After a minute scrutiny of the testimony of PW4, we further find that whatever PW4 has stated before the Court was on account of the past dispute and that was the reason she suspected their involvement in the crime. Similarly, PW5 and PW7 have miserably failed to weather the rigors of cross-examination. PW5 has been produced as an eyewitness who claimed in the Court that he can identify all four miscreants and, as his deposition records, identified Saryudhar Yadav and Manoj Yadav as accused. He has stated that a dispute arose between Saryudhar Yadav and Sunil Kumar in respect of a road contract and that was the reason for enmity between them. He admitted in the cross-examination that the miscreants were apprehended by 50-60 villagers but he does not remember whether or not Saryudhar Yadav was caught by them. From the trend of cross- examination, it appears that PW5 was confronted with his statement made before the police in which he did not disclose the complicity of Saryudhar Yadav and Manoj Yadav. PW7 who is mother of the deceased deposed in the Court that it was Manoj Yadav who slapped her son in the shop and fired a shot at his temple. She has further stated that among the miscreants who fled away, she identified Manoj Yadav. However, in her cross-examination, she 9 Acq. Appeal (DB) No.23 of 2020 & analogous cases

admits that she could not identify the miscreants.

14. This is well-settled that minor inconsistencies, omissions, improvements, etc. in the testimony of a witness do not assume materiality unless the cumulative effect of such inconsistency or omission or improvement/exaggeration is on the important aspect of the case and affects the core of the prosecution case. This is therefore the task of the Court to reach at a conclusion having regard to the facts and circumstances in the case whether or not the testimony of a witness inspires confidence of the Court upon which the Court can act without hesitation. This is also a rule applied in appreciation of evidence that the Court should not draw any conclusion by picking up an isolated portion from the testimony of the witness. Explanation to section 162 of the Code of Criminal Procedure provides that failure on the part of a witness to state a fact or circumstance in his statement made before the police may amount to contradiction if such omission appears to be significant or otherwise relevant having regard to the context in which such omission occurs. The very use of the word "may" in Explanation to section 162 unambiguously makes it clear that it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. In "Sunil Kumar Shambhudayal Gupta (Dr.)"6 the Hon'ble Supreme Court has held that whether any omission in the statement of a witness under section 161 of the Code of Criminal Procedure would amount to contradiction is a question of fact to be ascertained in each case.

15. Saryudhar Yadav is a neighbor of the deceased. There is also no doubt that the witnesses had prior acquaintance with Manoj Yadav. But the material prosecution witnesses did not state anything before the police about the participation of these accused persons in the occurrence. PW1 who claimed in the Court that he was present at the shop when four unknown assailants arrived on motorcycles is the person who gave information about the occurrence to the informant. Still, a First Information Report was lodged against four unknown assailants and there is no whisper about the presence of the accused at the time of the occurrence. Section 137 of the Indian Evidence Act provides that examination of a witness by the opposite party is cross-examination and section 146 of the Indian Evidence Act provides the 6 Sunil Kumar Shambhudayal Gupta (Dr.) v. State of Maharashtra: (2010) 13 SCC 657 10 Acq. Appeal (DB) No.23 of 2020 & analogous cases

purpose for cross-examination. The provision under section 146 of the Indian Evidence Act has a very sound basis that the other party must have an opportunity to test the veracity of truthfulness and credibility of a witness. PW5 and PW7 did not utter a word before the police about the presence or participation of Saryudhar Yadav and Manoj Yadav in the crime. The investigating officer has also admitted in the Court that PW1, PW5, PW10 and PW11 did not say anything about complicity of the accused in the murder of Sunil Kumar Yadav. But PW5 when confronted with his previous statement made before the police in course of the cross-examination denied that he did not make a statement regarding Saryudhar Yadav before the police. Similarly, PW7 has also denied in paragraph no.41 of her cross- examination that she did not disclose the involvement of Manoj Yadav in the murder of her son. These witnesses have however not made any complaint against the investigating officer that he was colluding with the accused or their statements were not correctly and properly recorded by him. Now whether or not PW5 and PW7 made such statement before the investigating officer the truth of which cannot be ascertained by the Court. This is the most common practice in a criminal trial that the credit of a witness is impeached through the previous statement of the witness, as provided under section 155 of the Indian Evidence Act. This is also a well-settled law that the statement of the investigating officer in the Court as regards the statement made by a witness before him is based on the recordings in the case diary. The case diary recordings are part of the investigation but the statement of the investigating officer on oath in the Court is substantive evidence to the extent he deposes about the recording of facts in the case diary. The trial Judge has extensively referred to the testimony of PW5 and PW7 and found them not trustworthy. In fact, the statements made by PW5 and PW7 in their examination-in-chief have been completely demolished by the defence with reference to their previous statements made before the investigating officer.

16. In "Rajendra Singh"7 the witness stated in the Court about the snatching of a gun from the accused and he was contradicted by his police statement wherein he had not stated anything regarding snatching of the gun. The Hon'ble Supreme Court has held that omission on the part of the witness 7 State of Rajasthan v. Rajendra Singh: (2009) 11 SCC 106 11 Acq. Appeal (DB) No.23 of 2020 & analogous cases

on such a vital point has to be treated as a contradiction and it creates a serious doubt about the truthfulness of his version.

17. Sunil Kumar was shot at around 06:15 PM on 15 th October 2014 and an information was given to the police by the informant around 06:40 PM at Sadar Hospital. This is the prosecution's evidence that PW14 and PW17 had accompanied Sunil Kumar to Sadar Hospital and they were present there when the officer-in-charge of Koderma PS arrived there. Notwithstanding that, a First Information Report was lodged against four unknown assailants. Sometimes there can be a good reason for not disclosing the name of the assailant(s) but not in the present case. Saryudhar Yadav and Manoj Yadav are not dreaded criminals and if at all they were involved in the occurrence the identity of the other two miscreants is still unknown. Therefore, the informant or the witnesses had no threat and they were not under any fear or coercion. In fact, the statement made by PW5 in the cross-examination that Sunil Kumar was shot by unknown assailants and PW7 admitting in paragraph no. 58 of her cross-examination that she could not identify the assailants due to weak eye-sight would completely demolish the prosecution's case against the accused. Having regard to the aforesaid circumstances in the case, we are inclined to accord approval to the findings of the trial Judge that PW5 and PW7 did not make any statement regarding the involvement of the accused before the police and for the first time in the Court they have stated about their complicity in the crime. Therefore, this must be held that PW5 and PW7 have made substantial improvements in the Court to implicate these accused and such improvements shall amount to contradictions on account of which PW5 and PW7 would become unreliable witnesses.

18. In view of the aforesaid discussion, we would accord our approval to the finding of the trial Judge that the charges under section 302/34 of the Indian Penal Code and section 27 of the Arms Act as also under section 3 of the Explosive Substance Act are not proved.

19. Acquittal Appeal (DB) No.23 of 2020 and Criminal Appeal (V) No. 07 of 2019 are dismissed.

20. There is a reference of a previous dispute between the deceased and Saryudhar Yadav in relation to a contract and Manoj Yadav also seems 12 Acq. Appeal (DB) No.23 of 2020 & analogous cases

to be a friend of the deceased. This is well-settled that all conspirators need not take an active part in the commission of each and every act which was necessary to accomplish the unlawful act to be done. But the circumstances in a case when taken together at face value should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act that is not illegal by illegal means. In "Ram Sharan Chaturvedi"8 referring to the majority judgment in "Ram Narayan Popli"9 wherein it has been observed that there should be some kind of physical manifestation of agreement to establish the offence of conspiracy, the Hon'ble Supreme Court has held as under:

"25. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the majority opinion of Ram Narayan Popli v. CBI, this Court had held:

"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."

21. There is no independent evidence worth consideration on the point of hatching a criminal conspiracy to eliminate Sunil Kumar. The story of past enmity loses its sting because according to PW3 and PW7 the dispute regarding a Tender had happened about 7-8 years in the past. The prosecution has therefore failed to establish a motive for the crime. This element of motive might not have weakened the prosecution case on other aspects but for proving criminal conspiracy the motive for an agreement to commit an unlawful act would be a relevant consideration. There is not even a circumstance proved by the prosecution to suggest involvement of Saryudhar Yadav and Manoj Yadav in a criminal conspiracy. In "Esher Singh"10 the Hon'ble Supreme Court has observed that the prosecution has to discharge its onus of proving the case against the accused beyond a reasonable doubt. Evidently, the trial Judge applied a wrong test and considered irrelevant materials to convict Saryudhar Yadav and Manoj Yadav under section 120-B of the Indian Penal Code. For that reason, the judgment in ST No. 56 of 2015 warrants interference by this Court and, accordingly, conviction and sentence awarded to them under section 120-B of the Indian Penal Code are set aside.

8 Ram Sharan Chaturvedi v. State of Madhya Pradesh: 2022 LiveLaw (SC) 709 9 Ram Narayan Popli v. CBI: (2003) 3 SCC 641 10 Esher Singh v. State of A.P. : (2004) 11 SCC 585 13 Acq. Appeal (DB) No.23 of 2020 & analogous cases

22. Criminal Appeal (DB) No. 787 of 2019 and Criminal Appeal (DB) No. 801 of 2019 are allowed.

23. The appellants, namely, Saryudhar Yadav and Manoj Yadav are acquitted of the charge under section 120-B of the Indian Penal Code.

24. Accordingly, the appellants, above named, are discharged from the liability of furnishing bail-bonds.

25. Let the lower Court records be sent to the Court concerned.

26. Let a copy of the Judgment be transmitted to the Court concerned and the concerned Jail Superintendent through FAX.

              I agree                           (Shree Chandrashekhar, J.)


(Anubha Rawat Choudhary, J.)

                                             (Anubha Rawat Choudhary, J.)


Jharkhand High Court, Ranchi
Dated: 18/08/ 2023
R.K./Amit
A.F.R.