S. Chandrashekhar, J.

1. All the appellants except John Miral Munda who is the appellant in Cr. Appeal (DB) No. 828 of 2017 are convicted and sentenced to RI for life and fine of Rs. 15,000/- under section 302/34 of the Indian Penal Code; RI for life and fine of Rs. 15,000/- under section 120-B of the Indian Penal Code; RI for ten years and fine of Rs. 10,000/- under section 3/4 of the Explosive Substance Act and; RI for two years under section 324 of the Indian Penal Code.

2. Raja Tubid who is the appellant in Cr. Appeal (DB) No. 808 of 2017 suffered further sentence of RI for five years and fine of Rs. 5,000/- under section 27 of the Arms Act.

3. John Miral Munda who was in judicial custody on the day of occurrence is convicted and sentenced to RI for life and fine of Rs. 15,000/- under section 302/120-B of the Indian Penal Code for murder of Gokul Gope in prosecution of criminal conspiracy.

4. Ganesh Dighi who is the appellant No. 4 in Cr. Appeal (DB) No. 707 of 2017 died in December 2020 and on an application filed by the State this criminal appeal qua him was dismissed as abated vide order dated 20th October 2021.

5. Gokul Gope was a union leader at ACC factory, Jhinkpani in the district of Chaibasa presently falling in the state of Jharkhand. The case of the prosecution is that the accused persons hatched a criminal conspiracy and committed murder of Gokul Gope in the early morning of 09th April 2012 at the shop of Sanjit Ram where he had gone for shoe polishing. Mannu Gope who accompanied Gokul Gope to the shop of cobbler gave his statement before Sakaldeep Singh, Officer-in-Charge of Jhinkpani PS, at 07:15 AM on 09th April 2012 in which involvement of Raja Tubid, John Miral Munda, Dilip Munda, Jantur Munda, Madhu Gope, Tala Bari, Munna Kujur, Mangal Alda, Ganesh Dighi and Mangal Tubid was stated by him. The informant made a specific allegation against John Miral Munda that he was the main conspirator. Ram Charitra Ram who took over the charge of investigation prepared inquest report at 07:30 AM the same day and gave requisition for postmortem examination of the dead body of Gokul Gope. Besides other witnesses, Basanti Devi and Mithun Gope were examined during the investigation and their statements under section 164 of the Code of Criminal Procedure were recorded by the Judicial Magistrate.

6. Binod Bari who was sitting near the cobbler's shop suffered injuries in the occurrence and was brought to ACC Hospital, Jhinkpani where Dr. Mahendra Biruli, Deputy Manager of Health Services treated him.

7. Dr. Binod Kumar Pandit who conducted autopsy has recorded in the postmortem report that injury No. I found on the dead body was a blast injury and injury Nos. II and III were caused by firearm.

8. The appellants faced the trial on the charge under sections 302/34, 324/34 and 120-B of the Indian Penal Code, sections 3 and 4 of the Explosive Substance Act and section 27 of the Arms Act and to prove these charges the prosecution examined fifteen witnesses.

9. The initial case of the prosecution that many persons were present near the cobbler shop at around 06:45 AM on 09th April 2012 suffered a serious jolt in the Court when PW4, PW5, PW6 and PW7 did not support the prosecution case-but, only PW4 was declared hostile. The learned counsels appearing for the appellants contend that the effect of several eyewitnesses turning hostile should necessarily be that they were planted witnesses and the prosecution did not reveal the true manner of occurrence.

10. As we understand in the legal parlance, a witness who resiles in the Court from his previous statement made before the Investigating Officer and does not support the prosecution is labeled as hostile witness. Section 154 of the Indian Evidence Act confers wide discretion in the Court and leaves it entirely to the Court to permit a party to call a witness to put any question to him which might be put in cross-examination by the opposite party. In the early years when the judicial opinion was sharply divided whether statement of an unfavourable witness can be used by the party calling the witness, Terrell, J.1 rendered an opinion that admissions of a witness in the cross-examination by the party calling him can be relied upon by the said party.

11. Later, the law on the subject was authoritatively written by Rankin, C.J.2 in the following words (at p. 1428-30 of the report):

"In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is 'cross-examined' to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say."

12. The law laid down in "Praphulla Kumar Sarkar" has been approved by the Hon'ble Supreme Court and a part of the evidence of the unsupportive witness if supports the prosecution can be used and his evidence is not discarded in entirety.

13. In "Sat Pal v. Delhi Administration" (1976) 1 SCC 727 [LQ/SC/1975/379] the Hon'ble Supreme Court has observed that in a criminal prosecution when a witness is cross-examined and contradicted with leave of the Court by the party calling him his evidence is not washed off the record altogether and a part of his testimony can still be believed.

14. In his examination-in-chief, PW4 has deposed as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

English translation

"1. On 09.02.2012, Gokul and Mannu Gope were sitting at the shop of a Mochi (Cobbler). Some persons came and hurled bomb at Gokul Gope. Mannu came to rescue him but he ran away out of fear. Firing started and Gokul Gope sustained bullet injuries. I do not know who shot him. Crowd gathered there and then we came. The witness declared hostile on the request of Addl. P.P."

15. The evidence of PW5 in his examination-in-chief is as follows:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

English translation

"1. The incident took place in 2012. It was morning. At that time, I was at Jorapokhar Chowk. A person named Gokul came on a motorcycle and went to the shop of a Mochi (Cobbler). Then, I heard the sound of blast. After the smoke cleared, I saw Gokul trying to stand and heard another sound and then he fell down. The second time, it was a sound of gunfire. I saw people running away. Gokul was lying on the ground. I did not see him from close distance. I do not know the assailants, as they were not local. Their faces were not familiar to me."

16. PW6 has said in his examination-in-chief as follows:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

English translation

"1. This incident took place about two years ago in the morning. At that time, I was in front of Mochi (Cobbler) shop in Jorapokhar. There was firing and bomb was hurled. I also sustained injuries. I was treated at A.C.C. Hospital, Jhinkpani. I sustained injuries on right side of chest, right hand and cheek. I ran away out of fear and went to the hospital."

17. The evidence of PW4 in the examination-in-chief that Gokul Gope and Mannu Gope were in the cobbler's shop and Gokul Gope was victim of bomb attack supports the prosecution case. His further statement that Mannu Gope tried to save him but ran away due to fear and thereafter firing started and Gokul Gope suffered firearm injuries are very relevant and completely in tune with the prosecution case. The cross-examination of PW4 by the prosecution reveals that he was outside his house at around 06:45 AM on 09th April 2012 and saw Gokul Gope and Mannu Gope arriving at Chowk. He was a witness to the attack on Gokul Gope by nine persons when the cobbler was polishing his shoes. He made a specific allegation of throwing bomb by Dilip Munda, Madhu Gope and Jantur Munda and firing by Raja Tubid but denied knowledge in the Court about the accused who fired at Gokul Gope. At this stage, he was declared hostile at the instance of the prosecution and cross-examined by the learned APP. PW5 and PW6 who were examined by the prosecution as eyewitnesses did not support the prosecution on identification of the criminals who attacked Gokul Gope with bombs and firearm. PW5 has however stated in his examination-in-chief that in the early morning on the day of the occurrence he was at Jorapokhar Chowk and saw Gokul Gope arriving there on a motorcycle. His further evidence is that Gokul Gope went to the cobbler's shop and he heard sound of blast and firing. PW6 has stated that firing and bomb blasts took place at Jorapokhar Chowk in the early morning and he also suffered injuries and was treated at ACC Hospital, Jhinkpani.

18. PW6 was examined at around 07:20 AM on 09th April 2012 by the Deputy Manager of Health Services at ACC Hospital, Jhinkpani-he was examined as PW2. He found clean incised wounds over his face, chest and abdominal area with bleeding. The nature of injuries was simple but PW6 was referred to Sadar Hospital, Chaibasa primarily for the reason that the injuries were caused by multiple sharp high velocity objects of varying sizes which were suspected to be caused by tyre blast, bomb blast or any other blast of the same nature caused by high velocity.

19. PW2 has observed the following injuries on the person of PW6:

"(i) Fresh clean incised wound on right side of the chest size 2 cm wide, 2 cm long and depth around. 5 cm with bleeding;

(ii) clean incised wound on abdomen, size 1.5 cm long and 1.5 cm wide, depth around. 2 cm with fresh bleeding;

(iii) a clean incised wound on right side of face, size 01 cm long,. 5 cm wide, and around. 1 cm deep;

(iv) small superficial multiple skin cuts on right hand and right leg with bleeding".

20. The presence of aforesaid injuries on the person of PW6 proves that he was a victim in the occurrence. We find that PW4, PW5 and PW6 did not support the prosecution wholeheartedly but a part of their evidence is usable by the prosecution.

21. PW5 and PW6 who did not identify the appellants in the Court made statements unfavourable to the prosecution but their statements made for the purpose of favouring the appellants must be excluded from consideration. Both are local persons and according to the prosecution they are eyewitnesses but they made such contradictory statements that their evidence cannot be used by the defence. For example, PW5 stated that the accused persons were not local people rather they were new faces whereas, PW6 has stated that the appellants are local people. PW7 Sanjit Ram did not support the prosecution on identification of the accused who came to his shop and attacked Gokul Gope but he was also not cross-examined by the prosecution.

22. As a general rule, evidence of a hostile witness in cross-examination by the defence would be in the realm of hearsay and cannot be used by the accused to contradict the prosecution case. In "Nathusingh v. The State of Madhya Pradesh" (1974) 3 SCC 584 [LQ/SC/1973/311] it was held that evidence of a hostile witness cannot destroy the prosecution case or make it doubtful. We may also refer to "State of UP v. Sahai" (1982) 1 SCC 352 [LQ/SC/1981/227] wherein the Hon'ble Supreme Court has observed that testimony of the prosecution witnesses who are otherwise reliable cannot be doubted merely on the basis of some stray statements of a hostile witness. We may also indicate at this stage itself that the defence evidence in no way contradicts the prosecution story. DW1 Sudhansu Pradhan gave evidence in the Court on behalf of the accused that on 9th April 2012 Mannu Gope was taking tea at his hotel and at that time six persons came on three motorcycles and hurled bombs and fired shots at Gokul Gope who died in the occurrence. Ladura Munda was Mukhia of Jorapokhar panchayat. As DW3, he deposed in the Court that Mangal Alda made a complaint in January 2012 that Sunil Gope and Mangal Gope were raising wall over his land.

23. We record with concern that a criminal trial on murder charge was conducted in most casual manner. The Public Prosecutor was either not aware about processes of the criminal trial or was completely indifferent towards his duties to present the prosecution case with utmost sincerity and to the best of his ability. The learned trial Judge did not display vigil and alertness and remained a mute spectator of spectacles of negligence of the prosecution which did not seek permission of the Court to cross-examine PW5, PW6 and PW7 with respect to their previous statements made before the Investigating Officer. In "Mohan Lal v. State of Punjab" (2013) 12 SCC 519 [LQ/SC/2013/417] the Hon'ble Supreme Court has observed that it is the solemn duty of the prosecution to ensure that the witnesses are examined in such a manner that their statements are recorded at the earliest so that to prevent them from turning hostile.

24. The conduct of PW4, PW5, PW6 and PW7 that they resiled in the Court from their previous statements made before the Investigating Officer brought discomfort to the prosecution which now is constrained to seek support from PW1 and PW8 as eyewitnesses.

25. Gokul Gope was accused in Radhe Munda murder case. The defence set up by the appellants in the trial was that Gokul Gope was involved in several serious crimes and he was eliminated by one of his enemies who remained unidentified. The plea set up by the appellants to impeach credibility of PW1 is that he alongwith Gokul Gope, Amit Gope, Kiran Lugun and Tala Munda were involved in Radhe Munda murder in which Dilip Munda is a witness and therefore the appellants were implicated merely on suspicion on account of past enmity.

26. The evidence of PW1 is to the effect that he was in the company of Gokul Gope in the morning of 09th April 2012. He deposed in the Court that at Jorapokhar Chowk the cobbler was polishing shoes of his maternal uncle (mama) and around 06:45 AM Dilip Munda came there and threw a bomb. Jantur Munda and Madhu Gope also hurled bombs at Gokul Gope and when he fell on the ground Tubid (Raja Tubid) fired at his cheek from a close range. He has further stated that Mangal Tubid, Munna Kujur, Mangal Alda and Ganesh Dighi joined them in the murderous attack on Gokul Gope with bombs. His statement was recorded by the police at Jorapokhar Chowk and he claimed before the police that attack on his maternal uncle was seen by Sunil Gope, Mithun Gope, Shivcharan Karu and Kiran Lugun. His further evidence is that Gokul Gope succumbed to the injuries on the spot and the accused left on a motorcycle towards ACC factory. This witness owned his fardbeyan and identified his signature over the fardbeyan and inquest report.

27. The presence of PW1 at the time of occurrence at Jorapokhar Chowk is challenged by the defence on the ground that he is a resident of another village. He has, however, explained that he was married to niece of Gokul Gope and that is how he came to village Jhinkpani two days before Gokul Gope was murdered. His responses in the cross-examination that he does not know the name of neighbours of Gokul Gope and cannot say registration number of the motorcycle are not unnatural because he was not a permanent resident of village Jhinkpani and it is not uncommon that even inmates of the house may not remember registration number of the vehicle. He was put to searching questions as regards criminal antecedent of Gokul Gope but he professed ignorance about the number of criminal cases pending against Gokul Gope. He admits in the cross-examination that he did not state in his restatement that Sunil Gope, Mithun Gope, Shivcharan Karu and Kiran Lugun saw murder of Gokul Gope, but this lapse is no longer relevant because they were won over by the defence.

28. The conduct of PW1 who stated in the cross-examination that he ran towards his house and hide himself at the time of occurrence and went near Gokul Gope after about 5-6 minutes has been criticized as unnatural.

29. The conduct of a witness is examined in the context of facts and circumstances of the case because it is almost impossible and even unrealistic to predict reaction of a person. In "Rana Partap v. State of Haryana" (1983) 3 SCC 327 [LQ/SC/1983/154] the Hon'ble Supreme Court has observed that there is no set rule of natural reactions and to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

30. In "Lahu Kamlakar Patil v. State of Maharashtra" (2013) 6 SCC 417 [LQ/SC/2012/1151] the Hon'ble Supreme Court has observed as under:

"26. .......... it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded".

31. The attack on Gokul Gope was violent. Several bombs were hurled at him and there was huge smoke and dust after the explosion. Raja Tubid used firearm and other three accused hurled bombs. This part of the prosecution story is supported by the evidence of PW2 and PW3 who found injuries caused to Binod Bari and Gokul Gope. Nine persons had attacked Gokul Gope and the manner in which they used bombs and firearm justifies reaction of PW1 who was present at Jorapokhar Chowk at the time of attack on Gokul Gope.

32. PW3 Dr. Binod Kumar Pandit who was posted as Medical Officer at Sadar Hospital, Chaibasa conducted autopsy over the dead body at 11:35 AM on 9th April 2012. He rendered an opinion that Gokul Gope suffered homicidal heath due to the injuries caused by blasts and firearm.

33. PW3 has recorded the following observations in postmortem report:

"External Injury:

(i) Multiple abraded, Lacerated wound on anterior chest and abdominal wall, both arms, face more on left side with burning and charring of skin. Multiple foreign body recovered from wound like of piece of glass, metals etc.

(ii) Small elliptical wound present on anterior chest wall just below and medial to left mammary gland-margins ragged. Inverted size ½ diameter. Blackening and tattooing of margins present appears to be wound of entry of a bullet.

(iii) Small elliptical wound present on anterior chest wall-sixth inter postal space in anterior auxiliary line.

Internal Injury:

(i) Both lung-lacerated, Heart-ruptured and both chamber empty, Liver lacerated. Blood and blood clot present in chest and abdominal cavity. Stomach-digested food material present in very small quantity."

34. Mr. Naveen Kumar Jaiswal, the learned counsel for the appellants in Cr. Appeal (DB) Nos. 671 of 2017, 681 of 2017 and 707 of 2017 submits that PW1 on his own admission in paragraph No. 10 of the cross-examination must be held not an eyewitnesses to the occurrence.

35. The evidence of PW1 in paragraph No. 10 is to the following effect:

"10. I could not see clearly who were the persons who hurled bombs and used firearm. There was commotion due to blasts. I had also fled away. The house of Madhu Gope is on the road towards Buta at a distance of about 50 feet from the place of occurrence. The house of Jantur Munda is about 1-2 kilometer away from Jhinkpani Chowk."

36. No doubt there is inconsistency in the evidence of PW1 inasmuch as he was specific in his examination-in-chief that Dilip Munda, Jantur Munda and Madhu Gope hurled bombs at Gokul Gope and Raja Tubid fired from countrymade pistol but his statement in paragraph No. 10 that "he could not see clearly" does not render him an unreliable witness. The testimony of a witness is examined in the context of the facts and circumstances in the case, and, as a whole and not in piecemeal. In the background of violent attack on Gokul Gope by bombs and firearm, the statement of PW1 in paragraph No. 10 of the cross-examination that he could not see clearly which accused used bombs and firearm cannot be construed to mean that Dilip Munda, Jantur Munda and Madhu Gope did not hurl bombs at Gokul Gope.

37. Notwithstanding some inconsistency in the testimony of PW1, we are satisfied that he is a reliable witness and the learned trial Judge rightly placed implicit reliance on his evidence to hold that Madhu Gope, Mangal Alda, Jantur Munda, Dilip Munda, Munna Kujur, Ganesh Dighi, Mangal Tubid, Raja Tubid and Tala Bari physically participated in the occurrence and committed murder of Gokul Gope by using bombs and firearm.

38. PW8 Sunil Gope testified in the Court that Gokul Gope came on a motorcycle with Mannu Gope and went to the shop of Sanjit Ram for shoe polishing. His evidence in the Court that Dilip Munda, Madhu Gope and Jantur Munda attacked Gokul Gope with bombs and Raja Tubid shot Gokul Gope with gun has remained unshaken in the cross-examination. He admits in the cross-examination that Gokul Gope and his son Amit Gope were sent to jail but denied knowledge about any animosity or litigation between Gokul Gope and the appellants. His statements in the cross-examination that the case was instituted by Dukhni Devi, that the accused came at Jorapokhar Chowk on foot and after the attack on Gokul Gope ran away are pressed before us to submit that PW8 is not an eyewitnesses. His presence at the place of occurrence is challenged on the ground that so early in the morning (around 06:30 AM) no one goes to a different place for recharge in the mobile phone. In our opinion, the evidence of PW8 cannot be examined through a precision machine. A witness may not have recollection of every little detail of the occurrence and his evidence cannot be scrutinized dehors the factual scenario. There was huge commotion after the bomb blasts and the place was covered with smoke and dust. In the circumstances, the error in observation of PW8 was minor inconsistency. What is important to note is that he claimed before the Investigating Officer that except John Miral Munda the other accused were involved in attack on Gokul Gope who was in the cobbler's shop. His testimony is substantially the same and he did not move in a quivering way in the Court. The questions put to him in the cross-examination were like shots fired in the dark which however did not yield any material contradiction in his testimony. We find that he was a chance witness who gave justification for his presence at the place of occurrence.

39. Furthermore, we find from the records that there was no cross-examination of the Investigating Officer as regards any inconsistency, exaggeration or improvement made by PW1 and PW8 in the Court. The Court shall therefore assume that these witnesses tendered evidence in the Court in tune with their previous statements made before the Investigating Officer. As permissible under section 172 (2) of the Code of Criminal Procedure, we have also glanced through the statements of PW1 and PW8 recorded under section 161 of the Code of Criminal Procedure to find whether there is any substantial improvement or exaggeration made by them but find no such attempt by them in the Court.

40. Ganesh Dighi set up a plea of alibi that on 9th April 2012 he was deputed on general shift between 08:00 AM to 04:00 PM. He called Niwas Sastri Somanchi who was examined as DW4 to prove the attendance register which was marked X for identification. DW5 Baliram Sinha was examined by him to prove in the Court that in the attendance register name of Ganesh Dighi is recorded at serial No. 4.

41. We have examined the records and are satisfied that Ganesh Dighi could not establish his alibi. The learned trial Judge has discussed the evidence laid by him in the following manner:

"The accused Ganesh Diggi has tried to establish in this case by filing the "Ext. B" (being the attendance register of dated 09-04-2012) and examining the DW4 Niwas Sastry Somanchi and the DW5 Baliram Sinha that on the date and time of occurrence, he was present on his duty, hence, it is quite impossible for him to remain on the place of occurrence or to commit the said incident. But from perusal of the oral testimony of DW4 Niwas Sastry Somanchi and DW5 Baliram Sinha as well as from perusal of the attendance register of accused Ganesh Diggi (Ext. B) I find that admittedly the present incident was caused at about 06:45 o'clock on 09-04-2012 and the DW4 Niwas Sastry Somanchi has deposed that the duty of Ganesh Diggi was from 8 to 16 o'clock on that day. Yet, this witness has said that the Ganesh Diggi had come to attend his duty on said date from 7:30 o'clock, but at the sametime, this witness has admitted at para 20 of his cross-examination that the distance of the place of duty of said Ganesh Diggi from his residence at Chaibasa, is about 67 km only and it takes about 1.5 to 2 hours to cover this distance by motorcycle. Further, at para 17 this witness has also admitted that even if, an employee comes up to 10 minutes late on his duty, he allows him to sign on attendance register and further at para 16 of his cross-examination this witness has also admitted that the time has not been mentioned beneath his signature. This witness has also admitted at Para-14 that the Ganesh Diggi was on rest just one day ago to the date of incident. Similarly, the DW5 Baliram Sinha, who has brought the original attendance register, before the Court, has admitted very frankly during his cross-examination that neither this register bears any seal of his department nor there is any certificate by any competent officer of his office regarding the pagination of this register. Further, this witness has also admitted very frankly that several blank pages has been left in between the entries in this register and if all these things are taken together the possibility of, manipulation in this register can't be ruled out. Thus, I find that the accused Ganesh Diggi has been completely failed in establishing the plea of alibi taken by him."

42. Mr. Shekhar Sinha, the learned Public Prosecutor submits that the evidence of PW9, PW12 and PW13 reveals that Gokul Gope was assassinated by physical participation of the appellants except John Miral Munda who hatched a criminal conspiracy while he was lodged in the jail at the time of the occurrence.

43. The learned trial Judge has dealt with the prosecution evidence in this regard as under:

"Thus in view of the above stated facts and circumstances of this as well as the case law referred hereinabove I find that the statement of PW9 Basanti Devi, PW12 Mithun Gope and PW13 Dukhni Munda is sufficient to establish the agreement of accused John Miran Munda with the rest accused persons of this case for committing the offence of murder of deceased and in such a situation no overt act is necessary to be proved by prosecution for establishing the existence of criminal conspiracy amongst the above named accused persons. The PW13 Dukhni Munda has very specifically said that her husband was saying during his life time also that the said accused persons shall kill him and she has deposed before the Court also that the accused John Miran Munda had warned her that her husband is guest of this world for 2-3 days only and just thereafter, her husband was murdered. There seems no reason as to why these witnesses shall falsely implicate the above named accused John Miran Munda in such a serious offence and I find no reason to disbelieve or discard the oral testimony of aforesaid three prosecution witnesses. Thus, I find that the prosecution has been able to prove in this case beyond the all shadows of reasonable doubts that the accused John Miran Munda had hatched conspiracy with the rest accused persons of this case for committing the murder of deceased Gokul Gope and in furtherance of said criminal conspiracy, the said murder was committed by the rest accused persons very brutally."

44. There are three essential ingredients of criminal conspiracy which are: (i) an object to be accomplished (ii) plan to accomplish the object and (iii) an agreement or understanding between two or more persons to accomplish the object. In a criminal conspiracy which is generally hatched in secrecy each conspirator may play different role to achieve the common purpose. A criminal conspiracy is mostly proved by circumstantial evidence and therefore conviction of an accused is recorded only when it is found that the cumulative effect of the circumstances is that his guilt is established. The most important ingredient of a criminal conspiracy is an agreement between two or more persons to do an illegal act, or an act which is per se not illegal but accomplished through illegal means. It is not necessary for the prosecution to establish the offence under section 120-B of the Indian Penal Code that the perpetrators of a crime especially agreed to do or caused to be done the illegal act, and the agreement between two or more persons can be established through circumstantial evidence.

45. In "Damodar v. State of Rajasthan" (2004) 12 SCC 336 [LQ/SC/2003/947] the Hon'ble Supreme Court has observed as under:

"15. ... The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. 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 (sic) sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or a series of acts, he would be held guilty under Section 120-B of the Penal Code, 1860."

46. John Miral Munda was labour leader of the rival union at ACC factory-other faction was led by Gokul Gope. On 09th April 2012 when Gokul Gope was murdered at Jorapokhar Chowk he was lodged in Divisional Jail, Chaibasa. The prosecution called PW9, PW12 and PW13 to establish that John Miral Munda was the mastermind who hatched a plan and at his instance Gokul Gope was assassinated by the other appellants.

47. PW9 and PW12 gave evidence to the effect that John Miral Munda was found talking to Madhu Gope and Raja Tubid in jail when he was produced in Court No. 2 on 02nd April 2012. There was serious challenge by the defence as regards production of John Miral Munda in Court No. 2 (Court of Shri B.B. Gautam). An information was procured through RTI which revealed that as on 04th September 2012 Shri B.B. Gautam was posted as Judicial Magistrate, 1st Class, whereas John Miral Munda was produced in the sessions Court. Besides this, in paragraph No. 6 of the cross-examination PW12 admits that he could not overhear talks between John Miral Munda, Raja Tubid and Madhu Gope. PW13 who is wife of the deceased deposed in the Court that about twenty days prior to his arrest John Miral Munda threatened her on way to Shiv Temple, Station Road, Jhinkpani that her prayers may not be granted and he would kill her husband. In the cross-examination she admitted that the place where she met John Miral Munda was a thoroughfare and lots of people would cross the place, and that she did not make any complaint to anyone in this regard. PW9 who is daughter-in-law of the deceased stated in the Court that she could hear John Miral Munda asking Raja Tubid and Madhu Gope to finish Gokul Gope in the month itself. Sebastian Toppo who was computer operator posted at Chaibasa Divisional Jail was examined to prove print out containing name of the persons who visited jail between 22nd February 2012 to 11th November 2013. Not only the visitor's list did not record presence of Raja Tubid and Madhu Gope, she was unable to say in which month and how many times she had gone to jail to meet her husband. She, however, admitted that there would be lot of noise (hulla-gulla) at jail gate where undertrials/convicts meet the visitors. She further stated that her husband who was lodged in the jail also told her that the accused were talking among themselves that Gokul Gope should be killed by this month but this part of her statement is plainly hearsay. Her statement that she could overhear talks between John Miral Munda, Raja Tubid and Madhu Gope becomes doubtful on account of her admissions in the examination-in-chief. Her statements when she was examined in the Court as regards many material facts seem quiet unnatural and for this reason also she does not appear to be a truthful witness.

48. No doubt the informant expressed apprehensions in the fardbeyan about involvement of John Miral Munda in the occurrence and the prosecution laid evidence to suggest that there was enmity between Gokul Gope and the appellants, but the evidence tendered through PW9, PW12 and PW13 to establish complicity of John Miral Munda is not sufficient to hold that he hatched a criminal conspiracy to eliminate Gokul Gope.

49. And, precisely for the above reasons, we further hold that the prosecution has failed to establish the charge under section 120-B of the Indian Penal Code.

50. Accordingly, all the appellants are acquitted of the charge under section 120-B of the Indian Penal Code.

51. The conviction of John Miral Munda who is the appellant in Cr. A. (DB) No. 828 of 2017 under section 302/120-B of the Indian Penal Code is set aside.

52. John Miral Munda is on bail and, accordingly, he is discharged from the liability of bail bonds furnished by him.

53. The conviction of Madhu Gope, Mangal Alda, Jantur Munda, Dilip Munda, Munna Kujur, Mangal Tubid, Raja Tubid and Tala Bari under sections 302/34 and section 324 of the Indian Penal Code, under section 3/4 of the Explosive Substance Act and further conviction of Raja Tubid who is the appellant in Cr. Appeal (DB) No. 808 of 2017 under section 27 of the Arms Act are upheld.

54. Since the appellants Mangal Alda, Munna Kujur, Mangal Tubid are on bail, the bail bonds furnished by them are cancelled. They shall surrender in the learned Court below to serve the remaining sentence.

55. The appellants Madhu Gope, Jantur Munda, Dilip Munda, Raja Tubid and Tala Bari who are in custody shall serve the remaining sentence.

56. Cr. Appeal (DB) No. 671 of 2017, Cr. Appeal (DB) No. 681 of 2017, Cr. Appeal (DB) No. 707 of 2017, Cr. Appeal (DB) No. 808 of 2017 and Cr. Appeal (DB) No. 402 of 2019 are partly allowed.

57. Cr. Appeal (DB) No. 828 of 2017 is allowed.

58. IA No. 3508 of 2021 and I.A. No. 5873 of 2021 stand disposed of.

59. Let lower Court records be transmitted to the Court concerned, forthwith.

60. Let a copy of the Judgment be transmitted to the Court concerned through FAX.