Vijai Shankar Tiwari And Another. vs State Of U.P.
2017 Latest Caselaw 4752 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Reserved on 24.8.2017.
 
Delivered on 21.9.2010.
 

 

 
Case :- CRIMINAL APPEAL No. - 810 of 2002
 

 
Appellant :- Vijai Shankar Tiwari And Another.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Virendra Mohan,Mahendra Pratap Singh,Shiv Kumar
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Satya Narain Agnihotri,J.

1. Being aggrieved with the impugned judgment and order dated 30.5.2002 passed by learned Special Judge (E.C. Act)/Additional Sessions Judge, Lucknow in Sessions Trial No.103 of 1996, under Section 324 read with Section 34 of I.P.C., whereby learned learned Special Judge (E.C. Act)/Additional Sessions Judge held guilty to the accused appellants under Section 324 read with Section 34 and sentenced each of them for two years rigirous imprisonment, this appeal has been preferred by the appellants Vijai Shanker Tiwari and Saligram Nai.

2. The factual matrix of the case is that on 14.3.1994 at about 9.30 P.M. complainant Santosh Kumar Yadav along with his younger brother Rakesh Kumar Yadav was passing through Munawwarbagh-Alambagh turn. The appellants accused Saligram Nai exhorted and fired through his country made pistol upon Rakesh Kumar Yadav and at the same time accused appellant Vijai Shanker Tiwari fired upon Rakesh Kumar Yadav with his double barrel gun which hit and injured Rakesh Kumar Yadav due to which he fell down on the earth. It is further alleged by the prosecution that seeing the assault upon his younger brother, complainant fled away and after a distance of about 10 meters he saw again that accused appellants were also fleeing towards opposite direction then he came back on the spot and made an alarm. Hearing the alarm, few persons of the vicinity came with the help of whom complainant carried away his injured brother to police station Alambagh, Lucknow where he scribed an application and submitted the same in the police station. After registration of the F.I.R. injured Rakesh Kumar Yadav was sent to Balrampur Hospital, Lucknow where injured was examined by doctor. The injury report Exhibit Ka-4 is on the record.

3. The accused appellants in their statement under Section 313 Cr.P.C. denied the allegations alleged against them by the prosecution and appellant Vijai Shanker Tiwari stated that he has been implicated due to enmity.

4. The prosecution examined seven witnesses, they are P.W.-1 Santosh Kumar Yadav complainant who supported the narration of the prosecution and stated that on 14.3.1994 he along with his younger brother Rakesh Kumar Yadav were coming from the house of their sister who was residing near Charbagh. He further stated that when they reached at the Munawwarbagh-Alambagh turn they saw appellant Vijai Shanker Tiwari with double barrel gun and appellant Saligram Nai with a country made pistol. The witness further stated that when they reached near the accused appellants, accused appellant Saligram Nai exhorted and made fire upon Rakesh Kumar Yadav and at the same time accused Vijai Shanker Tiwari also fired upon Rakesh Kumar Yadav through his double barrel gun which hit and injured Rakesh Kumar Yadav due to which he fell down on the earth. In cross examination this witness admitted that first time two fires were made by the accused appellants and when he was running then he heard voice of another fire. Thus three fire were shot by the accused appellants.

5. P.W.-2 injured Rakesh Kumar Yadav supported the examination-in-chief of the P.W.-1 and further narrated that accused appellant Saligram Nai made fire with his Katta (country made pistol) whereas accused appellant Vijai Shanker Tiwari made fire with his licensee double barrel gun which hit in the left side wrist and chest due to which he fell down on the earth. P.W.-2 in his cross examination stated that he had installed his shop (Gumti) near the Central Jail, Lucknow from where accused appellant Vijai Shanker Tiwari had taken betels and other things from him on credit and since accused appellant Vijai Shanker Tiwari was not paying the dues thats why on the date of incident he had gone to the house of appellant Vijai Shanker Tiwari demanding amount which was due (credited) towards him and due to this reason accused appellant Vijai Shanker Tiwari became annoyed with him. P.W.-2 further stated that he neither received any injury from the pistol shot of accused appellant Saligram Nai nor there was any enmity with him.

6. P.W.-3 Dr. Om Prakash Srivastava proved x-ray plates and x-ray report and stated that there were radio opaque shadows of metallic density in the injuries, which were found in the person of P.W.-2 Rakesh Kumar Yadav.

7. P.W.-4 Anwar Jamal, Scientist Forensic Science Laboratory proved that gun with empty cartridges which were found at the place of occurrence were sent to him for examination and as per his examination report two fires were shot from double barrel gun which was said to be of appellant Vijai Shanker Tiwari.

8. P.W.-5 Smt. Sangeeta Seth, Senior Assistant Scientist proved that blood stain and ordinary soil was examined by her and human blood was found in the blood stained earth, the report of which Exhibit Ka-3 was prepared by Dr. Kumari Archana Tripathi.

9. P.W.-6 Constable Shiv Baran Singh proved on oath that on 14.3.1994 he was posted at Police Station Alam Bagh and in pursuance of application of P.W.-1 Sri Santosh Kumar Yadav he had written chik F.I.R. which is Exhibit Ka-5 and this fact was entered in the G.D. which is Exhibit Ka-6.

10. P.W.-7 Sri Suresh Chandra, Sub Inspector, stated that on 15.3.1994 he was posted at Police Station Alambagh and he accompanied Investigating Officer Sri Uttam Prasad Tiwari who arrested accused appellant Vijai Shanker Tiwari in his presence. He further stated on oath that double barrel gun and three live cartridges were recovered from the accused appellant Vijai Shanker Tiwari. The document of recovery of double barrel gun and cartridges were prepared by Sri Uttam Prasad Tiwari, S.I. which is Exhibit Ka-7 on the record.

11. Heard learned counsel for the appellants Sri M.H. Singh and learned A.G.A. for the State.

12. According to order-sheet accused appellant Vijai Shanker Tiwari has died during pendency of this appeal, the appeal against appellant No.1 was abated on 16.5.2017. Thus there is only one accused appellant Saligram Nai.

13. Learned counsel for the appellant submitted that according to P.W.-1 and P.W.-2 there was no enmity with appellant Saligram Nai, thats why it is not believable that without any reason accused appellant will fire upon P.W.-1 Sri Rakesh Kumar Yadav.

14. Learned A.G.A. submitted that accused appellant Saligram Nai was the close associate of accused Vijai Shanker Tiwar thats why he was interested in elimination of P.W.-1 who was conducting his business near the gate of Central Jail.

15. In view of the rival submissions of learned counsel for the parties, I do not find any plausible reason for participation of accused appellant Saligram Nai in this offence because he never purchased anything from injured on credit. In every case there should be a motive for crime. In this very case there was no motive for committing crime by the accused appellant Saligram Nai. In the circumstances participation of accused appellant Saligram Nai is highly doubtful.

16. P.W.-2 in his cross examination admitted that only two shots were fired and he further admitted that shot which was fired by Saligram Nai did not hit him. Thus the evidence of P.W.-2 shows that Saligram Nai had no intention to cause injury to P.W.-2. The injury which was caused to P.W.-2 Rakesh Kumar Yadav, was by the double barrel gun of Vijai Shanker Tiwari deceased accused appellant.

17. The statement of P.W.-1 and P.W.-2 are contradictory in number of shots, which were fired by the accused appellants. As per statement of P.W.-1 three shots were fired while P.W.-2 stated that two shots were fired. Thus the discrepancy occurred in the statement of these two witnesses of fact demonstrates that participation of appellant Saligram Nai is not worth believable.

18. Learned counsel for the appellants submitted that both the witnesses of fact stated on oath that Saligram Nai exhorted and another accused deceased Vijai Shanker Tiwari fired upon Rakesh Kumar Yadav. The fire which was shot by the accused appellant Saligram Nai did not hit P.W.-2 Rakesh Kumar Yadav. If there was intention of the accused appellant Saligram Nai to cause injury to P.W.-2 he would have again shot fire but he did not do so. Thus the conduct of the accused appellant Saligram Nai shows that he was least interested in causing any injury to P.W.-2. Moreover, the evidence of exhortation is a very week type of evidence and upon such type of evidence a person cannot be held guilty. In Sachchey Lal Tiwari vs. State of U.P. 2004 AIR (SC) 5039, Hon'ble Apex Court held that the evidence of exhortation is a weak kind of evidence and by believing upon it a person cannot be held guilty.

19. The most disturbing feature in this case is that the prosecution failed to prove the injury report which was the basis of the prosecution and conviction of the accused appellant. Learned A.G.A. submitted that genuineness of this document was admitted by the accused appellant thats why doctor who examined the injury of injured P.W.-2 had not been examined as witness.

20. I do not find substance in the argument of learned A.G.A. The appellant made a note upon injury report that the genuineness of the document is admitted, but the contents are denied. In these circumstances, it was imperative for the prosecution to prove document Exhibit K-4, injury report of P.W.-2. The prosecution failed to discharge its duty thats why it is not proved beyond doubt that P.W.-2 Rakesh Kumar Yadav was injured and received gun shot injuries.

21. The document chik F.I.R. Exhibit Ka-5 demonstrates that time of incident was overwritten and it appears that digit of "2" was substituted by digit of "1" and digit of "4" was substituted by digit of "3" and so on.

22. In view of above noted discussions, facts and circumstances of the case, I find force in the appeal of the accused appellant Saligram Nai, hence the appeal is allowed. The judgment and order of learned Additional Sessions Judge/Special Judge (E.C. Act), Lucknow dated 30.5.2002 is hereby set-aside. The accused appellant Salig Ram Nai is not found guilty of the charges framed against him and he is acquitted of the charges framed against him. So he be set at liberty forthwith if he is not wanted in any other case.

19. Office is directed to communicate this order to the learned Trial Court concerned for compliance at the earliest. Return the Trial Court record along with copy of this judgment. The case property relating to this case shall be disposed of as per Rules.

Order Date :- 21.09.2017

Rakesh

(S.N. Agnihotri, J.)