Rajendra Tiwari vs State Of U.P. And Anr.
2022 Latest Caselaw 9355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 2 of 2020
 

 
Appellant :- Rajendra Tiwari
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Jitendra Partap Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

1. Heard Jitendra Partap Singh, learned counsel for the appellant, Ms. Nand Prabha Shukla, learned AGA for the State and perused the record.

2. Present Appeal has been preferred against the judgment and order dated 05.12.2019, passed by the Additional Sessions Judge-II, Chandauli in Sessions Trial No.208 of 2012 (State vs. Nanhu and Another) and Session Trial No.29 of 2004 (State vs. Sunil Tiwari), arising out of Case Crime No.88 of 2003, under Sections 323 and 307 IPC, Police Station Shahabganj, District Chandauli, whereby the accused respondent no.2-Sunil Tiwari has been acquitted from the charges under Sections 323 and 307 IPC.

3. The Prosecution story in brief is that while the complainant- Rajendra Tiwari alongwith his son-Dharmendra was working in their agricultural field at 9.30 in the morning, the accused persons namely Bechu Ram, Ram Sumer and Sunil Tiwari armed with firearm came there and fired three shots upon them, out of which one shot hit the left hand of his son and the other shot hit the head of the complainant, due to which they received serious injuries. Thereafter, FIR was registered and after lodging of the FIR, Investigating Officer was nominated. During investigation two accused namely, Bechu Ram and Ram Sumer have died. The chargesheet was submitted only against the surviving appellant- Sunil Tiwari, who is the accused respondent herein.

4. In support of prosecution case PW-1-Rajendra Tiwari, PW-2-Dharmendra Tiwari, PW.3-Shailendra Kumar, PW-4-Constable Hanuman Mishra, PW-5-Sukkhu, PW-6-Umashankar Gupta were produced and examined before the court below.

5. The judgment of acquittal has been passed on the ground that only role of exhortation has been assigned to the accused- Sunil Tiwari, which was not even alleged in the first information report. It was further found that alongwith documentary evidence plea of alibi was taken by the defence by producing photographs and statement of D.W-2-Ilias and a railway ticket from Jasidih to Madhupur dated 22.07.2003 and photographs during Baijnath Dham journey were also produced. The court below has found that although plea of alibi has not been proved but nothing adverse came in the statement of DW-2 on cross examination coupled with the fact that DW- 2 was a driver who had stated that Sunil Tiwari was not present on the spot. The court below also found that the allegation of exhortation is a weak piece of evidence and the same could not be proved.

6. Challenging the impugned judgment, learned counsel for the appellant submitted that in the first information report itself the accused herein was specifically named and the FIR is not an encyclopedia, therefore, the judgment of the court below is per se perverse. He further submitted that the accused persons have come to the place of occurrence armed with deadly weapons like firearm and that the accused respondent herein is equally responsible and was liable to be convicted under section 34 IPC. He further submitted that there is also injured witnesses in the present case. Submission, therefore, is that the judgment is perverse in nature and requires deeper scrutiny and liable to be reversed.

7. We have considered the submissions and have perused the record.

8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"

10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

13. On perusal of record, we find that it is not in dispute that the accused Sunil Tiwari has been named in the FIR, however, specific role of firing has not been assigned to him. The specific role of firing has been assigned to other accused persons, who were already dead, while only role of exhortation was assigned to accused Sunil Tiwari. The plea of alibi, in our opinion, was taken in support of documentary evidence in the shape of railway ticket from Jasidih to Madhupur dated 22.07.2003 as well as photographs of the place to which he had gone. That apart, we find that the incident is of the year 2003 whereas the statement of PW-1 was recorded in the year 2016, wherein for the first time the role of exhortation was assigned to Sunil Tiwari. We further find that DW-1-Ram Bharose Tiwari has specifically asserted in his statement that on 17.07.2003 he alongwith Rajpati Mishra, Suneel Dubey, Sunil Tiwari, Ramesh Upadhyay and Santosh Kesari had left for Baijnath Dham and on the same day in the evening at 4.00 pm by Farrukhabad Express they left for Sultanganj from Mugalsarai and on the next day they left Sultanganj for Baijnath Dham and on 20.07.2003 in the evening they had Dharshan of Baba Baijnath Dham and during journey they have taken photographs and after having Darshan of Baba Baijnath Dham they left for Darshan of Basukinath. On 22.07.2003 they catch the train for return journey from Jasidih. It was categorically stated that all such persons were together during journey and it is only on their return they came to know that some dispute had taken place between Rajendra Tiwari and Ram Sumer. He, therefore, stated that Sunil Tiwari was not present on the spot and was with them. We find that DW-1 had given details of the entire journey and in the cross-examination nothing came out in favour of the prosecution and even if plea of alibi is rejected, we find that the story of exhortation developed for the first time after 13 years in the statement of PW-1, does not inspire confidence.

14. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.

15. Accordingly the appeal stands dismissed at the admission stage itself.

Order Date :- 5.8.2022

Nitendra