Criminal Appeal (DB) No. 105 of 1997 (R) [Against the judgment and order of conviction and sentence dated 24.05.1997 (sentence passed on 28.05.1997) passed by Sri Sudarshan Upadhyay, learned 1st Additional Sessions Judge, Chatra in S.T. No. 31 of 1994] --------- Hardeo Yadav, S/o Late Maghu Yadav, R/o Village Ghuji, P.S. Pratappur, District- Chatra …. …. Appellant Versus The State of Bihar (now Jharkhand) …. …. Respondent --------- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI --------- For the Appellant : Mr. B.K. Dubey, Advocate For the State : Mrs. Vandana Bharti, A.P.P. --------- C.A.V. on 02/12/2024 Pronounced on 14/01/2025 Per Rongon Mukhopadhyay, J. Heard Mr. B.K. Dubey, learned counsel for the appellant and Mrs. Vandana Bharti, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 24.05.1997 (sentence passed on 28.05.1997) passed by Sri Sudarshan Upadhyay, learned 1st Additional Sessions Judge, Chatra in S.T. No. 31 of 1994, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 302/149, 148, 201 of the Indian Penal Code and has been sentenced to undergo R.I. for life for the conviction u/s 302/149 of the Indian Penal Code. No separate sentence was passed for the conviction recorded u/s 148, 201 of the IPC. 3. The prosecution case arises out of the fardbeyan of Bishamber Bhuiyan recorded on 24.06.1993, in which, it has been stated that at 4:00 A.M. some 9-10 persons variously armed were seen in front of the house of Janak Yadav. The villagers started congregating on seeing these persons. Janak Yadav had caught hold of a person and was goading his accomplices to commit the murder of the said person in the presence of the villagers. It has been alleged that Janak Yadav by snatching a sickle from one of -2- his accomplices severed the head of that person from his trunk. This gruesome act shocked the villagers and the crowd started swelling. On seeing this Janak Yadav threatened that he has to murder eight more persons. The villagers got agitated and started making efforts to apprehend the assailant and his accomplices. Sensing the mood of the villagers Janak Yadav and his accomplices started fleeing away towards Dumri with the head and the trunk of the murdered person. By that time 400-500 persons had assembled and by chasing three of the miscreants were apprehended. Due to the firing made by the extremists the villagers restrained themselves in their efforts to apprehend all the miscreants. The persons who were apprehended by the villagers were subjected to assault. The extremists had disclosed their names as Gora Bhuiyan, Arjun Yadav and Hardeo Yadav (appellant). From the possession of Gora Bhuiyan a loaded country made pistol was recovered while from the possession of Arjun Yadav three live cartridges and some letters prominently featuring the name of Janak Yadav were recovered. It has been alleged that Gora Bhuiyan had disclosed the name of the extremists who had fled away as Janak Yadav, Chanarik Yadav, Mutor Mahto, Maheshi Bhuiyan, Bhola Bhuiyan, Ratan Paswan, Bilash Bhuiyan and Sunil Bhuiyan. Due to the lynching by the villagers Gora Bhuiyan and Arjun Yadav died while Hardeo Yadav sustained serious injuries on his person. It has been stated that Deo Chand Yadav was the person whose head was separated from his trunk by Janak Yadav. A few days back Janak Yadav had asked Deo Chand Yadav to renovate his house but Deo Chand Yadav had refused to do such work for free due to which Janak Yadav had threatened him of committing his murder. The headless corpse of Deo Chand Yadav was later on recovered from village Dumri behind the house of Kameshwar Prasad. Based on the aforesaid allegations Pratappur P.S. Case No. 27 of 1993 was instituted against the accused persons -3- including the appellant. On completion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 31 of 1994. Charge was framed against the accused Hardeo Yadav u/s 302/149, 201, 148 of the IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as thirteen witnesses in support of its case. 5. P.W.1 (Naresh Prasad) has stated that around 4:00- 5:00 A.M. he was washing his hands after easing himself when he heard some commotion and on going to the said place he saw Janak Yadav catching hold of Deo Chand Yadav and there were 7-8 persons with him who were armed with Bhujali, Pistol etc. Janak Yadav had beheaded Deo Chand Yadav with a Bhujali like weapon. Due to the alarm raised villagers from three villages had assembled and they had chased the miscreants who were fleeing away with the dead body of Deo Chand Yadav and two of the miscreants were apprehended who disclosed their names as Gora Bhuiyan and Arjun Yadav. He does not remember as to whether the apprehended accused had disclosed the name of all other miscreants or not. From their possession Pistol and Cartridges were recovered. He had identified one Maheshwari Bhuiyan in the dock as one of the miscreants. In cross-examination, he has deposed that by the time he had reached the place of occurrence a crowd had already gathered. He had left the place of occurrence after the apprehended accused were being subjected to assault. 6. P.W.2 (Prasad Bhuiyan) has stated that he was in his house when at around 4:00-5:00 A.M. he heard some commotion, at which, he went to the source of the commotion and saw a person having beheaded Deo Chand Yadav. There were 6-7 miscreants and Janak Yadav was threatening that some other -4- persons have also to be beheaded. The miscreants thereafter started fleeing away and on being chased by the villagers two of them were apprehended and from both of them revolvers were recovered. They were also assaulted by the villagers. The apprehended persons had disclosed the name of their accomplices as Bhola Bhuiyan and Chanarik Yadav and the rest of the names he does not remember. He has identified Hardeo Yadav as one of the persons who was apprehended. In cross-examination, he has deposed that when he reached the place of occurrence the two persons who were apprehended were being assaulted by the villagers and they died. 7. P.W.3 (Rajeshwar Thakur) has stated that the incident is of two years back and he was in his house when at 4:00 A.M. he had heard a commotion in the village and when he went he saw Janak Yadav catching hold of Deo Chand Yadav. The villagers had assembled and in their presence Janak Yadav had severed the head of Deo Chand Yadav with a sickle. There were 8-10 miscreants along with Janak Yadav who started to flee away with the body of Deo Chand Yadav and on chase by the villagers two of the miscreants fell down and were apprehended who later disclosed their names as Arjun Yadav and Gora Bhuiyan. They were subjected to mob lynching and they died. From the possession of Gora Bhuiyan a Pistol was recovered while from the possession of Arjun Yadav three cartridges were recovered. The persons who were apprehended by the villagers had taken the names of 2-3 persons who were fleeing away but he does not remember their names. None of the persons who were present in the dock including the appellants were the persons who were fleeing away. In cross-examination, he has stated that at the place of occurrence a large crowd had gathered. 8. P.W.4 (Munni Yadav) and P.W.5 (Suraj Yadav) have been tendered by the prosecution. -5- 9. P.W.6 (Guljar Mian) and P.W.7 (Jagdish Bhuiyan) did not support the case of the prosecution and were declared hostile by the prosecution. 10. P.W.8 (Mohan Yadav) and P.W.9 (Baleshwar Yadav) have been tendered by the prosecution. 11. P.W.10 (Bishamber Bhuiyan) is the informant who has stated that he was sleeping in his house when at around 4:00- 5:00 A.M. he heard some commotion, at which, he went to the said place were several villagers had assembled. He has stated that Janak Yadav had beheaded Deo Chand Yadav with a sickle. The miscreants had started fleeing away with the dead body and about 1600-1700 villagers chased them and two of the miscreants were apprehended. Except Gora and Arjun Yadav no one were apprehended. The crowd had lynched Gora and Arjun Yadav to death. He had not heard about the apprehended accused disclosing the name of their accomplices. He later on states that they had taken the names of Sunil Bhuiyan and Bilas Bhuiyan. From the possession of Gora a revolver was recovered while from the possession of Arjun Yadav some documents and three cartridges were recovered. His fardbeyan was recorded by the Police. None of the miscreants who were apprehended and who fled away are present in the dock. In cross-examination, he has deposed that the apprehended miscreants did not have any scope to speak as they were assaulted and done to death the moment they were apprehended. 12. P.W.11 (Baran Bhuiyan) was declared hostile by the prosecution. 13. P.W.12 (Dr. Nitya Nand Mandal) was posted as a Civil Assistant Surgeon at Sadar Hospital, Chatra and on 25.06.1993 he had conducted autopsy on the dead body of Deo Chand Mahto and had found the following: -6- (i) Incised wound over neck transecting whole neck at the level of fifth cervical vertebra part of vertebra is sharply cut, whole soft tissues and muscles cut. Maggots were crawling over whole cut surface, brownish colour, part of skin margin eaten away by maggots. (ii) Other internal findings- headless body. Head and part neck absent. Thorax – Lungs and pleura was pale. Heart muscle was flaky, pale and both chamber empty. Abdomen wall distended opened with loud explosive sound. Visceras were pale, genitalia was broadly swollen due to putrefaction. (iii) Other general findings. Rigor mortis was faintly present in lower limb and putrefaction process was growing. The cause of death was opined to be due to shock and haemorrhage as a result of the above mentioned injuries caused by Garasa, Tangi etc. The post-mortem reports have been marked as Exhibits-1 and 1/1. The head of Deo Chand Mahto was produced later on and the post-mortem report of head was marked as Exhibit-1/1. 14. P.W.13 (Uma Shankar Singh) has proved the formal FIR, fardbeyan and the inquest report which have been marked as Exhibits- 2, 3 and 4 respectively. 15. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his complicity in the murder. 16. Mr. B.K. Dubey, learned counsel for the appellant has submitted that none of the witnesses have taken the name of the appellant as being a member of the extremist group which had come and had eliminated Deo Chand Yadav. Though the informant has named the appellant in his fardbeyan but in his evidence as P.W.10 he had not even whispered a word about the appellant. The appellant has been implicated primarily due to the fact that the appellant is the brother of the main accused Janak Yadav. 17. Mrs. Vandana Bharti, learned A.P.P. for the State has submitted that there are strong circumstances arising out of the evidence of the prosecution witnesses to suggest that the -7- appellant had actively participated in the murder of Deo Chand Yadav. 18. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records. 19. Janak Yadav has been assigned to have essayed a prominent role in committing the murder of Deo Chand Yadav by beheading him with a sickle. There were other associates of Janak Yadav who were variously armed and all these persons were chased by the villagers being infuriated with the brazen and diabolical manner in which Deo Chand Yadav was done to death. The chase resulted in Gora Bhuiyan and Arjun Yadav being apprehended by the villagers with arms and ammunitions and the mob enraged by the beheading of Deo Chand Yadav started committing assault upon them and resultantly they died. In the fardbeyan the informant had mentioned about the appellant being apprehended also and subjected to brutal assault but in his evidence as P.W.10 no whisper has been made against the appellant. In fact P.W.10 has confined the number of persons apprehended to two which is in consonance with the evidence of the other witnesses. P.W.10 has also failed to identify anyone in the dock who were present in various capacities at the time of the occurrence. P.W.3 is another eye-witness who has not named the appellant nor has he identified the appellant as one of the miscreants fleeing away. The only blur for the defence in the prosecution evidence is the testimony of P.W.2 who has stated about the appellant being one of the persons who was apprehended thus giving a reflection of the contents of the fardbeyan but his evidence is littered with ambiguity as though he is consistent that two persons were apprehended and both were done to death by the rampaging villagers but he has identified the appellant in the dock as one of the miscreants apprehended by the villagers. This apparent ambivalence in the evidence of P.W.2 is further decimated on account of the same having remained uncorroborated. The -8- prosecution has failed to bring on record any medical document cementing the allegation of the appellant being brutally assaulted by the villagers as stated in the fardbeyan and the entire gamut of the case is feathered with insufficient evidence so far as the appellant is concerned. The learned trial court has placed undue reliance in the evidence of P.W.2 without delving into the apparent contradictions which radiate from such evidence. 20. We, therefore, on the basis of the discussions made hereinabove, set aside the judgment and order of conviction and sentence dated 24.05.1997 (sentence passed on 28.05.1997) passed by Sri Sudarshan Upadhyay, learned 1st Additional Sessions Judge, Chatra in S.T. No. 31 of 1994. 21. This appeal is allowed. 22. Since the appellant is on bail he is discharged from the liability of his bail bond. (Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) High Court of Jharkhand at Ranchi Dated, the 14th day of January, 2025. A. Sanga /-