Allahabad High Court
Shiv Kishore Tiwari @ Rajju Tiwari vs State Of U.P. on 4 November, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 44
Case :- CRIMINAL APPEAL No. - 6577 of 2008
Appellant :- Shiv Kishore Tiwari @ Rajju Tiwari
Respondent :- State of U.P.
Counsel for Appellant :- Vikas Tiwari,Abhay Kumar Singh,I K Chaturvedi,Mahesh Prasad Yadav,P.K.Shukla,R.K.Pandey,Shailesh Pandey,V.B.Rao
Counsel for Respondent :- Govt. Advocate
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per: Hon'ble Ajai Tyagi, J.)
1. This appeal has been preferred against the judgment and order dated 11.09.2008, passed by the learned Sessions Judge, Hamirpur, in Session Trail No.158 of 2002 State vs. Shiv Kishore Tiwari @ Rajju Tiwari arising out of Case Crime No.62 of 2002 under Section 302 IPC, Police Station- Maudaha, District- Hamirpur, whereby the appelant is convicted and sentenced for the offence under Section 302 IPC for life imprisonment with a fine of Rs.10,000/- and in defalut of payment of fine, further R.I. for one year.
2. The brief facts of the case as culled out from the record are that a written report was submitted on 01.04.2002 by informant Ashok Kumar Tiwari at Police Station- Maudaha, District- Hamirpur with the averment that on 31.03.2002 at about 9:30 pm the neighbour of the informant Shiv Kishore @ Rajju son of Swamidin Tiwari was calling names and abusing standing at the door of his house. Vedmani Diwedi, his mother Smt. Sushila Diwedi and Ashutosh Diwedi told him not to abuse and asked to go inside the house. On this, Rajju went inside the house but after some time he again started abusing from his courtyard. On this informant, his mother Smt. Meera Devi and wife Suman Lata went on the roof of their house where bulb was lighting. At that point of time, Rajju triggered one fire from the courtyard with the gun in his hand. The uncle of the informant Shri Krishan Kumar @ Munni aged about 35 years was sleeping on his roof, he wake up and asked Rajju not to abuse and fire. Grandmother of the informant Smt. Shiv Kali who used to reside with aforesaid Munni was also standing there. When uncle of informant Shri Krishan Kumar stopped Rajju from abusing, Rajju went on Atari and triggered fire from there which hit the right temple of Krishan Kumar @ Munni who fell down and died on the spot.
3. On the basis of above report, a criminal case was registered at Police Station- Maudaha, District- Hamirpur as Crime No.62 of 2002, under Section 302 IPC and investigation was started. During the course of investigation, the I.O. recorded the statements of witnesses u/s 161 Cr.P.C., visted the spot and prepared site-plan. At the time of visiting the spot, I.O. found one empty cartridge from the place of occurrence and its recovery memo was prepared. I.O. also collected blood stained and plain earth from the spot. The inquest proceedings were conducted and inquest report was prepared. The dead body of the deceased was sent for post mortem, where post mortem was conducted by the doctor and post mortem report has prepared. During the course of investigation, accused-appellant Shiv Kishore @ Rajju Tiwari was arrested and on his pointing out a single barrel gun was recovered from his house. Its recovery memo was also prepared. Recovered gun and empty cartridge were sent to Forensic Science Laboratory for seeking the report. The aforesaid report was received.
4. After completion of investigation, investigating officer submitted charge sheet against the appellant- Shiv Kishore @ Rajju Tiwari under Section 302 IPC.
5. The case, being triable exclusively by the Court of Sessions, was committed by Magistrate to Court of Sessions. Learned trial court framed charge against the appellant under Section 302 of IPC. The appellant denied the charge and claimed to be tried.
6. Prosecution examined following witnesses:
1.
Ashok Kumar Tiwari
PW1
2.
Smt. Meera Devi
PW2
3.
Dr. Pushkar Anand
PW3
4.
Ram Autar Yadav
PW4
5.
Ram Prakash Bajpey
PW5
7. Apart from aforesaid witnesses, prosecution submitted following documentary evidence, which was proved by leading the evidence:
1.
FIR
Ex.ka.3
2.
Written Report
Ex.ka.1
3.
Recovery Memo of Empty Cartridge
Ex.ka.11
4.
Recovery Memo of Blood Stained & Plain Sand-Cement
Ex.ka.12
5.
Recovery memo of cot, mattress, quilt, mosquito net and bamboo sticks
Ex.ka.13
6.
Recovery memo of gun
Ex.ka.14
7.
P.M. Report
Ex.ka.2
8.
Report of Vidhi Vigyan Proyogshala
Ex.ka.17
9.
Report of Vidhi Vigyan Proyogshala
Ex.ka.18
10.
Panchayatnama
Ex.ka.5
11.
Charge sheet
Ex.ka.16
12.
Site plan with Index
Ex.ka.10
13.
Site plan with Index
Ex.ka.15
8. After completing the prosecution evidence, statement of appellant was recorded u/s 313 Cr.P.C., in which he denied the evidence against him and said that there was family dispute regarding partition. Hence, he was falsely implicated by the informant. No evidence was adduced by the appellant in his defense. After hearing arguments of both sides the learned Sessions Judge convicted the appellant u/s 302 of IPC and sentenced for life imprisonment and fine for Rs.10,000/-. Hence, this appeal.
9. Heard learned counsel for the appellant, Shri Vikas Goswami, learned AGA appearing on behalf of the State and perused the record.
10. Learned counsel for the appellant submitted that impugned judgement is absolutely illegal and arbitrary. Prosecution has failed to prove the charge beyond reasonable doubt. It is further submitted that the FIR was lodged on the next day of the occurrence and the delay is not explained by the prosecution witnesses. PW1 and PW2 are the only two witnesses of fact, who are interested witnesses. No independent witness is produced by the prosecution. PW1 and PW2 are not eye-witnesses. As per their evidence, they reached to the place of occurrence after sometimes of the incident. Moreover, the place from where they said to witness the occurrence is the roof, while as per the prosecution evidence, accused fired from his courtyard and since there are high walls around the roof, it was not possible from there to witness the courtyard of the house of the accused.
11. Learned counsel for the appellant next submitted that there is no motive because it is not mentioned in the first information report to whom the accused was abusing and further the witnesses of fact have deposed that he was not abusing to any particular person. Hence, there was no reason for him to kill the deceased when even he was not abusing him. Learned counsel pointed out that as per the averment of first information report, the occurrence took place at 9:30 pm while PW1, who himself is the informant, has deposed in examination-in-chief that occurrence took place at 7:00 pm. Hence, there is material contradiction between the timing of alleged incident.
12. It is vehemently submitted by learned counsel for the appellant that a gun is said to be recovered from the house of the appellant on his pointing out and one empty cartridge was recovered from the spot. Gun and cartridge were sent to Forensic Science Laboratory from where the report was received and this report says that recovered empty cartridge was not fired by the said gun. Hence, entire prosecution case is shattered. Appellant has been falsely implicated due to previous enmity between the parties on account of family partition. Learned trial Judge has not appreciated the evidence as per legal principles and misread the evidence on record. The appellant was wrongly convicted and sentenced. Hence, the appeal be allowed.
13. Learned AGA opposed the submissions made by learned counsel for the appellant and contended that PW1 and PW2 reside in the neighbourhood of the appellant. Hence, their presence on the spot cannot be doubted. Both these witnesses are eye-witnesses and have supported the prosecution case in their testimony. With regard to the report of Forensic Science Laboratory, learned AGA submitted that ocular evidence shall be given preference to the report of the ballistic expert. The gun was recovered from inside the house of the appellant on his pointing out. It is next submitted by learned AGA that ante mortem injury in post mortem was corroborated the prosecution version. As per prosecution witnesses, fire was triggered from the distance of 2-2½ feet and blackening and tattooing was present around entry wound, which also corroborates the testimony of eye-witnesses. Hence, the learned trial Judge has rightly convicted and sentenced the appellant and there is no illegality or infirmity in the impugned judgement, which requires any interference by this Court.
14. Learned counsel for the appellant has raised the issue of delay in lodging the FIR. The occurrence is said to have taken place at 9:30 pm on 31.03.2002 and first information report was lodged on the next day at 10:00 am while the distance to the police station from the place of occurrence was 9 kms. Although, the informant has stated in his testimony as PW1 that due to fear of the appellant and want of means of travelling at night, the FIR could not be lodged just after the occurrence. Delay in lodging the FIR in every case is not fatal to the prosecution case. It shall be analysed along with other evidence on record. It is relevant to note that time of occurrence is specifically told in FIR, which is 9:30 pm while the informant Ashok Kumar Tiwari has deposed in his cross-examination as PW1 that the occurrence took place at 7:00 pm. There is much difference between 7:00 pm and 9:30 pm. This is material contradiction in fixing the time of occurrence.
15. The prosecution has produced two witnesses of fact, namely, PW1 Ashok Kumar Tiwari and PW2 Smt. Meera Devi. Both are said to be eye-witness and they are son and mother respectively. PW2 Meera Devi has categorically deposed in her cross-examination that "मै फायर लगने के तुरंत १० मिनट बाद गयी थी, मेरे साथ अशोक लड़का गया था तथा पड़ोस के तमाम लोग आ गए थे". It is important to note that she has stated that she went to the spot after 10 minutes of the occurrence and her son Ashok was also with her. This Ashok is PW1. Hence, it can be safely held that PW1 and PW2 both reached to the spot after 10 minutes of the occurrence. Hence, they both are not eye-witnesses. This above statements of PW2 is also confirmed by the testimony of PW1 Ashok Kumar, who states in his cross-examination that he went to the dead body of his uncle after 15-20 minutes of fire because for reaching to the spot, firstly he had to come out from main door of his house and then entered the house of the deceased from his main door. It is also stated by him that he did not go alone. When other people came there, he went near the dead body with them. It is admitted fact that the PW1 and deceased were neighbours. Hence, it cannot be believed that it would take 15-20 minutes to reach the house of adjoining neighbour. This statement of PW1 also suggests that he did not witness the occurrence as stated by her mother PW2 Meera Devi. Learned trial Judge does not appreciate this evidence in right perspective. In our considered opinion, PW1 and PW2 are not eye-witnesses and no other witness of fact is produced by the prosecution.
16. As per prosecution case, there were two fires by the appellant, but only one empty cartridge was recovered from the spot. Learned AGA has contended that the second empty cartridge is fallen on the ground if it is taken out from the barrel. In this regard, in our opinion, if second cartridge was not taken out from the barrel then it could have been found in the barrel when gun was recovered but as per recovery memo no empty cartridge was found in the barrel of the gun. Besides it, ballistic report is very much relevant in this case. As per prosecution case, the empty cartridge, which was found on the spot and the gun which was recovered from the house of the appellant were sent to Forensic Science Laboratory for having ballistic report. Such report is received by the court, in which ballistic expert has stated that empty cartridge was not fired by the recovered gun. Hence, it is crystal clear that the recovered empty cartridge was not fired from the gun, which is said to be recovered at the pointing out of the accused. On this score, the prosecution case is shattered and in this way clinching evidence is in favour of the accused. Learned trial Judge has opined that there was no contradiction between the evidence of PW1 and PW2. While, as discussed above, there are several material contradictions in their evidence, which go to the root of the case. Though both are proved not to be the eye-witness of the occurrence. Report of ballistic expert is not in favour of the prosecution. Hence, we are unable to subscribe the finding of the fact that fire was triggered by the accused-appellant to do away with the deceased. In criminal jurisprudence prosecution has to prove the guilt of the accused beyond all reasonable doubt, which is not done in this case. Though, we have held that death was homicidal death but prosecution has failed to prove the charge against the accused beyond reasonable doubt and benefit of doubt is granted to the appellant. Hence, appeal is liable to the allowed.
17. Accordingly, the appeal is allowed.
18. Accused-appellant is acquitted of the charge framed against him u/s 302 of IPC. The fine of amount be refunded if it is already deposited by the appellant.
19. The accused-appellant be released from jail forthwith if not wanted in any other case.
20. Record and proceedings be sent back to the court below.
(Ajai Tyagi,J.) (Dr. Kaushal Jayendra Thaker,J.)
Order Date :- 04.11.2022
Ashutosh Pandey
