Allahabad High Court
Kamlesh Tiwari And 2 Others vs State Of U.P. on 24 November, 2025
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2516 of 2022
Kamlesh Tiwari and 2 others
..Appellant(s)
Versus
State of U.P.
..Respondent(s)
Counsel for Appellant(s)
:
Akash Dwivedi, Atharva Dixit, Deepak Dubey, Prabhat Tripathi, Raghuvansh Misra, Rahul Misra, Rajiv Lochan Shukla, Sr. Advocate
Counsel for Respondent(s)
:
G.A., Prateek Mishra, Saurabh Singh, Siddhartha Baghel, Sumit Kumar Srivastava, Vibhu Rai
Along with :
1.
Criminal Appeal U/s 372 Cr.p.c. No. 952 of 2022:
Ved Mani Tiwari
Versus
State of U.P. and 5 others
2.
Criminal Appeal No. 2518 of 2022:
Rakesh Tiwari
Versus
State of U.P.
3.
Government Appeal No. 388 of 2022:
State of UP
Versus
Vidhan Chandra Tiwari S/O Daya Shakner and 04 others
Court No. 42
Hon'ble Siddhartha Varma,J.
Hon'ble Madan Pal Singh,J.
1. The criminal appeal No. 2516 of 2022 and Criminal Appeal No. 2518 of 2022 have been filed against the judgement and order dated 31.3.2022 passed by the Additional Sessions Judge, Court No. 11, Allahabad, in Sessions Trial No. 620 of 2011 (State vs. Rakesh Tiwari and another and Session Trial No. 1045 of 2011(State vs. Kunjan Lal Tiwari and others) arising out of Case Crime No. 209 of 2010 under Sections 147, 148, 149, 302, 307, 452, 506 of IPC and Section 7 of the Criminal Law Amendment Act, Police Station - Manda, District - Allahabad.
2. Upon an incident having taken place allegedly at 9:00am on 17.12.2010, a first information report was lodged at 1:00pm by the son of the deceased Vinay Kumar Tiwari who had appeared in the case as P.W.-1. The name of the deceased was Daya Shankar Tiwari.
3. This made the investigating agency i.e. the U.P. Police to go into action and a panchayatnama was drawn vis-a-vis the dead body on 17.12.2010 itself at around 3:00pm. Thereafter, on the next day i.e. on 18.12.2010, the post mortem of the dead body was conducted at 12:30PM. The police had collected from the site in question, blood stained soil and plain soil along with a muffler. Pieces of broken glass were also recovered and a recovery memo of those recovered articles was made and the injured Vidhan Chandra Tiwari was attended to and injury report which is exhibited as Exhibit Ka3 was also prepared on that very date. Also, the X-rays of the injuries which were required to be taken was done. After the conclusion of the investigation, the Police submitted its report on 15.3.2011. Thereafter, the Additional Sessions Judge, on 20.7.2011 framed charges against Rakesh Tiwari and Kamlesh Tiwari. Thereafter, charges were also framed against Nageshwar Tiwari, Vedmani Tiwari and Kunjan Tiwari. For proving the case, the prosecution produced as many as 10 prosecution witnesses who were as follows:-
1.Vinay Kumar Tiwari 2. Vidhan Chandra Tiwari 3. Dr. Santosh Kumar 4. Dr. S.P. Singh 5. Ram Jeevan 6. Anil Kumar 7. Deep Kumar, 8. Dr. Mani Bhusan Tiwari, 9. Awadhraj, and 10. Surendra Kumar Sharma.
4. Form the side of the defence, 5 defence witnesses were produced who were as follows:-
1. Dr. Ankit Ram, 2. Ram Jeevan, 3. Dr. B.K. Singh, 4. Dr. S.K. Rai, 5. Manoj Kumar Shukla.
5. The P.W.-1, Vinay Kumar Tiwari, had on oath stated that the day when he commenced with his testimony, the incident had been 7 months old. He has stated that on account of the fact that the accused persons, namely, Kunjan Lal Tiwari, Rakesh Tiwari, Kamlesh Tiwari, Nageshwar Tiwari and Vedmani Tiwari were inimical because of an election rivalry, they had consciously with weapons in their hands and with an intention to kill entered the house of the first informant and the deceased. He had stated that Kunjan Lal Tiwari had directly addressed his father and had questioned him as to why he had opposed him in the election to the post of Pradhan. While he was questioning the father, Rakesh Kumar Tiwari another accused with a firearm in his hand, fired on the father of the P.W.-1. Similarly, Kamlesh Tiwari who had also a firearm in his hands with an intention to kill had fired. The bullets fired by Rakesh Kumar Tiwari had hit the chest of the father of the first informant and the bullet fired by the Kamlesh Tiwari had hit Vidhan Chandra Tiwari on his hip. While this was happening the elder brother of the first informant, namely, Vyas Ji raised a hue and cry and because of that the accused persons fired indiscriminately on the first informants side. He has stated that Vyas Ji and he himself hid themselves to save their lives. He had also, upon a question being asked as to whether he had seen the assailants firing, stated that he himself had seen the assailants firing and that they had fired in the air. He had stated that before this incident had occurred, the co-accused had also warned the first informant that their whole family would be done away with. In this regard, the first informant had also made a representation to the police at Manda. He had stated that apart from himself, Vyasji his brother, Sadhna Tiwari, the wife of Vyasji, Manu Tiwari, the wife of Vidhan Chandra Tiwari along with many others of the village had witnessed the incident.
6. Thereafter, the first informant had stated that he had taken his injured father and brother to the Swaroop Rani Hospital at Allahabad where the doctors had declared the father late Daya Shankar Tiwari dead. The injured brother was admitted in the hospital where his treatment had immediately commenced. He has stated that thereafter he had gone to the Police Station - Manda to get the first information report lodged. There, he had stated that he had also got the copy of the first information report and his statement was also recorded by the police. He had proved the first information report which he had lodged. Thereafter as per his statement, he came to the place of incident at around 3:00pm. He has stated that he himself and his brother Vyasji had not got injured at all. He has again stated that he had reached the police station at around 1:00pm and had stayed there for around 2 hours and that the signatures on the first information report were his. Thereafter, he had stated that he must have signed on the first information report at around 1:20PM. On the chick of the first information report, he had stated that there were no signatures of his. He had then stated that the jeep by which he had taken the 2 injured to Swaroop Rani Hospital, Allahabad, was taken by him on rent of Rs. 1,500/-.
7. He had stated that after he had got the statement recorded at the police station his statement was never taken again. He has, thereafter, stated that how and when various persons had got elected on the post of pradhan he did not know and thereafter had stated ultimately that in the year 2010, Kunjan Lal Tiwari had got elected. He had stated that Vidhan Chandra Tiwari was his elder brother and that in the election his brother had got the second highest number of vote which was 140.
8. Upon a question being asked as to whether he knew about the fact that Kunjan Lal had got 1600 votes, he had stated that he had no knowledge about that fact. However, he knew that he had won the election. He had stated that the grove which was on the southern side of the house was belonging to many owners and that it did not belong to Ram Sanehi alone. He had stated that he did not know that a portion of the land belonging to Ram Sanehi and his brother Ram Dayal was sold to the one of accused. He had denied the fact that any door had been opened one month prior to the date of the incident on the southern of his house and has stated that, in fact, the door was in existence since 2005. He had also stated that the cross - case in which the informants were accused was also pending in the same court. He had further stated that when he had gone to get the first information report lodged, he was aware of the fact that Rakesh Tiwari had shot his father dead. He has stated that he did not remember if he had stated in the first information report that Kunjan Lal upon reaching the house of the informant had stated that he had questioned as to why the Daya Shanker Tiwari had opposed him in the election. He had stated that while Kunjan Lal was putting questions Rakesh Kumar Tiwari had shot his father with an intention to kill. However, upon being shown the first information report, he had stated that all these facts were not mentioned in the first information report. The mistake, he stated, had occurred because he was very sad at that point of time.
9. He had stated that his father had been killed inside the house and that he had fallen in the gallery of the house itself. He had further stated that at the same place where his father was attacked his brother Vidhanchandra Tiwari was also attacked at. He had stated that Vidhan Chandra Tiwari had also fallen down at the place where he was hit by the bullet and that lot of blood had come out of their bodies which was spread on the floor of the house. He had stated that just as there was blood on the clothes of his father and his brother there was blood also on his clothes, but he had stated that he had not gone to the police station with the clothes which had blood on it and that when he had reached the police station there was no blood on his clothes. He had stated that the jacket which he was wearing had been removed by him as there was blood on the jacket. He has stated that the Investigating Officer (Darogaji) had reached the place of incident at around 3 to 4 PM and that Daroga Ji was shown the blood which had fallen on the floor of the house. He had stated that Darogaji had taken the sample of the blood which was lying on the floor. He had stated that on the northern side of the house there was the main road which went from Allahabad to Mirzapur. He has stated that the distance of the road was around 40 feet. He had then described his house and had stated that if one enters the house from the northern side then the other opening was on the southern side and in between there was no gate etc. The gallery which joined the northern and southern ends was 5 feet in width and 80 feet in length. He had stated that in the gallery if one started from the northern end and reached around 74 steps towards the southern end then one would reach the place where the incident had occurred. He had stated that when the firing had taken place, many people from the village had assembled.
10. He had stated further in his testimony which was recorded on 30.7.2012 that at the time of incident he was having a licenced revolver, the licence of which he had got 6 to 7 months prior to the date of incident and that the revolver was in the house itself. The revolver was purchased with an intention to get a private job of a security guard etc. On 17.12.2010 that revolver was in his locker. However, he had stated that when he had gone to get the report lodged he had gone along with the revolver. He had stated that at the place of incident, pellets, wads, empty cartridges etc. had fallen down but the accused persons had taken them away along with them. He had stated that empty cartridges had numbered around 6 to 7. He had not stated all these details in the FIR as it was not required to give all the details in the first information report. In fact, he had stated that he had not even told the Investigating Officer about the fact that the accused - persons had taken away the empty cartridges etc. He had stated that on the date of incident, he had not seen any injury on the bodies of Vedmani Tiwari, Kamlesh Nath or Rakesh Nath. He had stated that prior to the occurring of the incident, no meeting or panchayat had taken place. He had also denied the fact that he had got lodged the first information ante-timed. Further, in the testimony, he had also given the description of the house and also the description of neighbouring buildings. When different accused persons cross-examined this witness, he consistently replied to them in the same manner as he had replied to the cross-examination in the beginning.
11. Thereafter, the testimony of P.W.-2, the injured witness was got recorded and he had stated in the examination in chief the very same facts as were stated by the P.W.-1. However, he states that when Kunjanlal Tiwari and other co-accused persons had reached the house of the first informant then Rakesh had fired upon the father of the injured eyewitness Vidhan Chand Tiwari and thereafter he i.e. the P.W.2 had tried to run away and at that point of time Kamlesh had fired on him and that the bullet had hit him on his hip and when he had fallen down then Kunjanlal had hit him on his face by his boot. This hit had given him injury on his lips. He had, thereafter, given the description as to how other assailants had fired in the air. He had, thereafter, again informed as to how he and his father had reached the hospital. He has also repeated the story with regard to the threats he himself and his father had received from the accused persons and regarding those threat he had also informed the police. He had then stated that the information he had sent to the police on 11.12.2010 was by speed post. He had also stated somewhat the same facts as were stated by the P.W. 1 that the bullets were fired on him around 70 feet south of the northern door and he very specifically states that when the bullets hit him he was inside the house in the gallery and he has, thereafter, stated that he had fallen down and remained in that position for around 20 to 25 minutes and a lot of blood had oozed out of his body. He had stated that he thereafter went straight to the Swaroop Rani Hospital which was around 22 kms. from his village. He has, thereafter, in the cross-examination done by the other accused persons stated virtually the same facts. However, when he answered to the questions of Ved Mani Tiwari, he had stated that the persons who had hit him were at a distance of around 3 to 4 feet on the southern side and his face was on the southern side. He has stated that first his father was hit by the bullets and, thereafter, he was hit. He had stated that there was no time to retaliate and therefore there was no injury on the side of the accused persons. He had stated that when the assailants attacked him and his father they were comfortably relaxing on the threshold of the gallery and they were not prepared for the attack. He has stated that when his father was shot at and he had fallen down the accused persons had not fired the second time. He had thereafter stated that the first information report was not got lodged on his suggestions and he had never even read the first information report. He had stated that the accused persons were led by Kunjanlal and he was also carrying a pistol but he had never fired on them. He had stated that Nageshwar and Kunjanlal had fired on the brothers of the P.W.-2 but none of the shots aimed at the brothers hit the target. He had also stated that he was not aware as to where the bullets which had missed the target hit on the wall and the roof. He had again reiterated that the accused persons never got any injury.
12. P.W.-3 was Dr. Santosh Kumar of the Tej Bahadur Sapru Hospital, Allahabad. He was the doctor who had done the post mortem on the body of the deceased and he had very categorically stated that he had not seen any blackening or tattooing around the injury and, in fact, he has stated that the bullets must have been fired from a distance of around 14 to 15 feet.
13. P.W.-4, was Dr. S.P. Singh, who had medically examined the injured i.e. the P.W. 2 and had stated that the injury no. 1 in the face could have been received by the injured when he fell down. With regard to the injury no. 2 on the hip, he had stated that it could be a self inflicted injury as well.
14. P.W.-5 was the Head Constable, Ram Sajivan who had proved the chick. He had stated that after the chick was prepared on 17.12.2012, the copy of it was sent only on 20.12.2012.
15. P.W.-6 Sub Inspector, Arvind Kumar, who was posted at Police Station - Muththiganj had proven the post mortem.
16. P.W.-7 Sub Inspector Deep Kumar who was posted at the relevant point of time at the police station Manda, District - Allahabad had stated in his examination-in-chief that on 17.12.2010 while he was posted at Manda Police Station, Allahabad then he had received the first information report after getting lodged for the purpose of investigation. On the same day, he had recorded the statement of Vinay Kumar Tiwari and on the pointing of the first informant, he inspected the site and had prepared the site map in his own hand. For the purposes of investigation, various pieces of evidence which were found at the spot like the mud, blood stained soil, muffler and broken spectacles were recovered. On the recovery memos along with his signature, the signature of Ashok Kumar Singh was also present. Further, he had stated that on 19.12.2010 out of the accused persons two of them namely, Kunjan Lal Tiwari and Nageshwar Tiwari were arrested. He had also stated that the injured, after getting his preliminary treatment at the SRN Hospital, came to get his statement recorded. However, because he was finding it difficult to speak he could not get his statement recorded. He has also mentioned as to how when the other co-accused were not getting arrested he had made efforts to get them arrested. He had stated that the pellet which was taken out from the injury of Vidhan Chandra was taken into custody and was kept in the Malkhana.
17. Upon his cross-examination by the accused Kunjan Lal Tiwari, the PW-7 had stated that he had been in Manda Thana for 5-6 months more after the incident and during the period he had been in the Thana, the election for pradhani had taken place. In the Nahawai Gram Sabha Kunjan Lal Tiwari was the candidate for Pradhan and that against him many other candidates contested the election. One of the contestants who had opposed Kunjan Lal Tiwari was Vidhan Chandra and that there was absolutely no dispute between Kunjan Lal Tiwari and Vidhan Chandra. There was no complaint of any booth capturing etc. also. He had stated that the case was registered in the Thana in his presence. The informant had given the complaint in the Thana at around 01:00 PM. He had further stated that before the first information report was lodged he had no information of the occurrence. The place of incident was around 5-6 kilometre away from the Thana in the North. He had stated that he had not seen that there was any blood on the clothes of the first informant. The first informant was not carrying any revolver. He had further stated that if the informant had kept the revolver under his clothes etc. then he did not know about that. Thereafter, he had stated that he had gone to the place of incident in between 01:00 to 02:00 PM. He had stated that he was aware of the fact that first the case is registered and thereafter it is entered in the G.D. The first information report was lodged and registered in about 35-40 minutes. When he had reached the place of incident a lot of people had collected over there. Then he had stated that around 10-15 people were there. He had stated that he did not question any one who was present. Thereafter, he had stated that he had left for his Moharram durty. About, the incident, he had stated that, he had informed all the higher police officials. On the next date, he had stated that he had arrested Kunjan Lal Tiwari and Nageshwar in the night at around 11:00 PM. He had stated that it was wrong to say that Kunjan Lal Tiwari was coming back after getting himself some treatment and at that point of time he had arrested him. After the arrest, Kunjan Lal Tiwari was at the Thana. The statement of the injured Vidhan Chandra was recorded on 25.12.2010. Prior to that he was not in a position to get his statement recorded. This was primarily because the doctor had recommended that he be not permitted to speak. PW-7 did not know the name of the doctor. He had stated very categorically that he was under no pressure to get a false statement recorded against Kunjan Lal Tiwari. He had stated that at the place of incident he had not found any empty cartridges etc. He had further stated that he had not stated in the G.D. as to what time he had reached the place of incident. He further had stated that the first informant had a revolver/pistol license. He had stated that he had never got any firearm of the first informant inspected and also his revolver was not taken by the police and sent to the Forensic Science Laboratory. For not sending the revolver to the Forensic Science Laboratory, no reason could be given. He had further stated that he did not remember if Daya Shanker, Vidhan Chandra, Vinay Kumar, Dilip Kumar and Devendra Kumar were made accused by Vedmani Tiwari under Section 307 of I.P.C. He had stated that if any case whatsoever was registered in his Thana then the same was investigated into by his subordinate on his orders. He had then stated that when he was at the Thana he was aware of the fact that against the first informant Vinay Kumar etc. case under Section 307 of I.P.C. had been got registered. After having come to know that a case had been registered against Vinay Kumar under Section 307 of I.P.C., he had stated that he had not moved any application to suspend the firearm license of Vinay Kumar.
18. In the cross-examination by the accused Kamlesh, the PW-7 had stated that the date noted by the Magistrate about the information was 20.12.2010. He had very categorically stated that in Exhibit Ka-12 at place A where the deceased was hit by the bullet his blood was lying and he had then stated that the place A was around 60 steps South of the house of the complainant-informant. He had very categorically stated that at only one place, blood was found and that was marked by A. He had then stated that there was no mention of the fact that from where exactly the muffler and the broken spectacle was found. He had stated that on 17.12.2010 at 01:00 PM he had come to know that Daya Shanker Tiwari had died and that his dead-body was lying in the S.R.N. Hospital. He had stated that he had not made any efforts to send anyone to the hospital and to get the panchayatnama prepared. He had stated that it was wrong to say that he had got the panchayatnama prepared by the police chauki of the S.R.N. Hospital. He had stated that the copy of the panchayatnama and the postmortem report were received by him on 20.12.2010. He had then stated that he had left the Thana on 17.12.2010 at 01:00 PM for the investigation. Thereafter, at 11:50 PM he had stated that he had returned to the police station. He had then stated that the G.D. was sent to the C.O. Office on the next date of its filling. He had stated categorically that on the clothes of Vinay Kumar Tiwari, he had not found any blood and therefore he had not kept the clothes of the first informant Vinay Kumar in his custody. He had also categorically stated that he had not taken any sample from inside the house and also he had never examined the revolver of Vinay Kumar Tiwari, the first informant. He reiterates that the statement of Vidhan Chandra Tiwari was recorded only on 25.12.2010.
19. PW-8 Dr. Mani Bhushan Tiwari, had stated that on 17.12.2010, he was present in the SRN Hospital in radiology department as a student and that the x-ray of Vidhan Chand Tiwari was done under his supervision. The left hip and the thigh were x-rayed and in it a substance of metallic density was seen. The x-ray is on the record as Paper No. 93B. In the cross-examination, he had stated that he was in fact a student in the SRN Hospital and that he had not known the injured from before. He also had stated, looking at the x-ray, he could not tell as to how old the injury was.
20. PW-9 is Awadh Raj, Prabhari Nirikshak. He had stated that on 27.1.2011, he was working as Thanaha Adhyaksh in Kheeri, District Allahabad, and while he was posted there, he was given the work of investigation by the DIG. He had stated that he had taken Kunjan Lal Tiwari and Nageshwar Tiwari on a 14 days remand. Further he had stated that on 3.2.2011 during the investigation, the witnesses Vyasji Tiwari, Smt. Sandhya, and other witnesses of the Panchayatnama Jagdish and Deva Nandan. Ram Sagar and Rajendra Tiwari had got their statements recorded before him. The accused Rakesh Tiwari and Kamlesh Tiwari were searched for but they were not found. On 9.2.2011, again statements of Kunjan Lal and Nageshwar were got recorded. On the same date, the statement of Vidhan Chandra and Vinay Kumar i.e. of the witnesses were recorded. On 11.2.2011, Kamlesh Tiwari and Ved Mani Tiwari were arrested. The accused Rakesh Tiwari was being searched for, but he was not found. In his cross-examination, he had stated that he did not remember much about the dates when the statements of the accused were recorded.
21. PW-10 is one Surendra Kumar Sharma who had stated that on 7.3.2011, he was posted at the Thana Kheeri at Allahabad and because of the transfer of the earlier investigating officer Avadh Raj, the investigation was given to him. On 12.3.2011, he had also got recorded the statements of Ramji Kesharvani, Sabbir Ali, Baiju Harijan. On 15.3.2011 from the National Arms Store Shaukat Ali Marg Allahabad, he had gone to get the pistol of the accused Rakesh Nath Tiwari, however, the shop was closed.
22. On 18.5.2011 the Arm which was found at the shop was taken into custody. On 26.6.2011, the ADM had given the orders that the firearm of Rakesh Nath Tiwari be given to the Investigating Officer and 4.7.2011 the firearm was taken from the National Arms House and kept in sealed cover. On 7.8.2011, the revolver of Kamlesh was taken from Keshavs Arms house, Gopiganj, Bhadohi and both the firearms were sent to the police station Manda and Munshi Daya Shankar Police Station Manda was directed to send the two firearms along with bullet which was taken out from the dead body of the deceased for FSL examination. He had stated that on various dates reminders were sent to the FSL Lucknow to send the FSL reports. In the cross-examination, he had stated that on 12.3.2011 he jotted down a conclusion that with regard to a certain dispute of land between Daya Shankar Tiwari and Ved Mani Tiwari and that with regard to it, a Panchayat was in progress on on 17.12.2010. In the Panchayat a lot many people who were definitely more than 50 were present. During the Panchayat because of the election enmity, Vichan Chandra Tiwari and his brother, etc. became very angry with Rakesh Tiwari, Kamlesh Tiwari and Ved Mani Tiwari. He had stated in his cross-examination that during the verbal altercation, there was an exchange of fire and that Rakesh Tiwari and Kamlesh Tiwari with their licensed pistol fired to protect themselves and he had stated very categorically that the entire incident had taken place in the Khervari bagh (mango grove). He had stated that he had also examined the cross case, which was State vs. Vidhan Chandra and others, and in that case also a site map was prepared. He had also stated that during the investigation, it was also revealed that Vinay Tiwari from his licensed pistol had also fired, however, he had not taken the revolver of Vinay Tiwari into the custody. Reason for not taking the revolver of Vinay Tiwari, however, was not known to the P.W.-10.
23. Upon the conclusion of the recording of the statements of the witnesses, the five accused got their statements recorded under section 313 Cr.P.C. Thereafter, the statements of defence witnesses, Dr Ankit Raja, Dr. Ram Jeevan, Dr. B.K. Singh, Dr S.K. Rai and Dr Manoj Kumar Shukla were also recorded.
24. Upon the conclusion of the trial, the Additional District Judge, Court No. 11, Allahabad, convicted Rakesh Tiwari, Kamlesh tiwari, Nageshwar Tiwari, and Ved Mani Tiwari under Sections 147, 148, 149, 302, 307, 452, 506 IPC read with Section 7 of the Criminal Law Amendment Act. Kunjan Lal Tiwari had died during the pendency of the trial.
25. The convicted persons, namely Kamlesh Tiwari, Nageshwar Tiwari, and Ved Mani Tiwari filed a criminal appeal being Criminal Appeal No. 2516 of 2022, while Rakesh Tiwari filed against the judgment and order dated 31.3.2022 an appeal, which was numbered as Criminal Appeal No. 2518 of 2022.
26. The counsel for the appellants Sri Manish Tiwari, learned Senior Counsel, assisted by Sri Rajeev Lochan Shukla, Sri Atharva Dixit, Ms. Shriyanshi Upadhyay, Sri Shashank Pandey and Sri Raghuvansh Mishra, Advocates essentially confined their arguments to the following submissions:-
I. Learned counsel for the appellants submitted that the prosecution had miserably failed to fix the place of occurrence. There was no tell tale sign of firing inside the house. No blood or blood stain was found by the P.W.-7 the first investigating officer and he had thus categorically contradicted the version of P.W. 1 and 2 in respect of place of occurrence. Learned counsel for the appellants relied upon the judgments in Syed Ibrahim vs. State of Andhra Pradesh reported in 2006 Crl LJ 4087, Pohlu vs. State of Haryana reported in 2006 Crl LJ 532 and State of M.P. vs. Mishrilal (dead) and others reported in 2003 (9) SCC 426. The relevant portion of paragraph no. 9 of the judgement is being reproduced herein under:
9. .But in the spot map (Ext. P-3) the position shown is contrary and the house of PW 8 was omitted from this map. The testimony of Ramnarayan (PW 8) is inconsistent with Ext. P-3 spot map. This apart, the learned trial Judge made a spot inspection on 11-3-1991 under Section 310 CrPC. However, the trial Judge did not choose to record the memo of inspection. The judgment was delivered on 16-3-1991. What had prompted the learned trial Judge to have recourse to spot inspection was not spelled out because no memorandum of inspection was prepared. But it is clearly suggestive of deficiency of evidence with regard to place of occurrence. In such a situation, it was incumbent on the part of the learned trial Judge, to have recorded the memo of inspection for proper appreciation of the inspection. Undoubtedly, the mandatory provision has not been followed by the trial court.
Learned counsel for the appellants stated that, in fact, the investigating officer had categorically stated that no blood stains were found inside the house or in the gallery of the house where the prosecution alleged the incident had taken place. The site plan of the Investigating Officer completely belies the prosecution story as set up by the P.W.- 1 and 2.
II. Further, the learned counsel for the appellants stated that the first information report had stated that the incident had taken place inside the house of the first informant and the alleged incident was witnessed by the elder brother of the P.W.-1, namely, Vyasji Tiwari, sisters-in-law of P.W.-1 Sadhna Tiwari and Manju Tiwari and several other persons. They were considered as eye-witnesses and their statements were also recorded under Section 161 Cr.P.C. However, the said witnesses were never produced during the trial and thus very relevant eye-witnesses have been kept back. Learned counsel for the appellants stated that this cast a very serious doubt on the veracity of the prosecution case. An adverse inference had to be drawn. He relied upon the judgment reported in 2001 (6) SCC 145 : Takhaji Hiraji vs. Thakore Kubersing Chamansing.
III. The next argument raised by the learned counsel for the appellants is that the P.W.-1 stated that at the time when he reached the police station for lodging the first information report, he was armed with his licensed revolver. However during the cross examination, no explanation was given as to on what point of time he could lay his hand on his licensed revolver. The fact that P.W. -1 was carrying the revolver and that it was used was never investigated by the police. Learned counsel for the appellants, therefore, states that there was every possibility that the deceased had died of the firing from the firearm of P.W.-1.
IV. The next submission of the learned counsel for the appellants was that the manner of assault was not corroborated. He submits that the Investigating Officer had categorically stated that no blood stains were found inside the house or in the gallery of the house. No pellets or bullets or empty cartridges were recovered from inside the house. Learned counsel for the appellants, therefore, states that the prosecution story does not inspire confidence. Only two injuries were found. One on the deceased and one on the injured with respect to the firearm whereas five persons allegedly had resorted to indiscriminate firing. Learned counsel for the appellants, therefore, stated that false implication was evident.
V. Learned counsel for the appellants further stated that the prosecutors were the real aggressors. Learned counsel for the appellants stated that, in fact, the accused persons had sustained multiple injuries and Rakesh Tiwari had also sustained a fracture in his skull which was dangerous to life as per the doctor. Ved Mani Tiwari had also sustained four injuries including a fracture in his foot which was opined to be grievous in nature. Kamlesh Tiwari had also sustained five injuries including the incised wound in the skull. In this regard, the learned counsel for the appellant relied upon judgments in the cases of Rizan and another vs. State of Chattisgarh reported in 2003 (2) SCC 661, Wassan Singh vs. State of Punjab reported in 1996 (1) SCC 458 and Partap vs. The State of U.P. reported in 1976 (2) SCC 798. He also relied upon a judgment reported in 2002 (10) SCC 160 : State of Rajasthan vs. Kishan Singh.
VI. Learned counsel for the appellants submitted that there was no evidence to support the presence of the P.W.-1 at the site. He submits that the clothes worn by the deceased and the injured had blood stains and it was natural that the blood ought to have been smeared in the clothes of the P.W.-1. However, those blood stained clothes never saw the light of the day which goes to suggest that the P.W.-1 was lying. Furthermore, it has been argued that when without his presence being their at the site, the FIR was being lodged a false story had been got reported that the incident had taken place inside the house whereas the fact was that the incident had taken place outside the house, which fact was evident from the site plan prepared. Learned counsel for the appellants relied upon the judgments in the cases of Lakshmi Singh & others vs. State of Bihar reported in 1976 (4) SCC 349 and Bhagwan Sahai & another vs. State of Rajasthan reported in 2016 (13) SCC 171.
VII. Learned counsel for the appellants submitted that there was absolutely no recovery of any cartridges, shells, casing etc. at the place of incident and the explanation given by the prosecution that the accused themselves had run away with the pellets and bullets appears to be an unbelievable explanation.
VIII. Learned counsel for the appellants further submitted that the prosecution had behaved in the most unnatural manner. If the statements as were recorded by the P.W.-1 and 2 are seen and also if there replies in the cross-examinations are looked into, it becomes evident that a false case had been taken in the FIR. Also, the explanation given for the falsity in the FIR appears to be unbelievable, i.e., when the P.W.-1 says that he was nervous while lodging the FIR. Learned counsel for the appellants states that the P.W.-1 was, in fact, not at all present at the time of the incident and because he had lodged the FIR stating that the incident had taken place inside the house for quite some time the P.W.-2 did not get his statement recorded and after he was properly tutored he got his statement recorded after a passage of substantial time. Learned counsel for the appellants further states that the elder brother Vyasji Tiwari never came into the witness box and similarly his wife also refrained from going to the witness box. Even the wife of Vidhan Chandra, namely, Manju did not appear in the witnesses box. Learned counsel for the appellants states that this absence was a natural conduct on their part as they could not state a falsity in the court and also they could not withstand the cross-examination.
IX. Learned counsel for the appellants further submitted that the motive as was assigned by the prosecution itself was also very flimsy. Kunjan Lal Tiwari had won by a margin of 1600 votes while the deceased had received merely 140 votes and, therefore, it did not stand to reason that winning candidate would come and try to kill a candidate who had lost by as many as 1460 votes.
X. Learned counsel stated that the ordinary course of human conduct was that the sons of the deceased ought to have run to save the father. They would have at least not let the accused run away. In this regard, learned counsel relied upon paragraph no. 14 of the judgement reported in 2003 (9) SCC 426. He, in fact, submitted that the presence of P.W.-1 becomes absolutely doubtful. Since the learned counsel read the paragraph no. 14, it is being reproduced here as under:-
14. .... In the ordinary course of human conduct, when his father Mishrilal is inflicted as many as five injuries which are stated to be dangerous to life, a son is expected to intervene in order to salvage his father and in the process he would receive injuries on his body, if he was present at the place of occurrence. The other two sons Madhusudan and Jamunaprasad who were with the father Mishrilal received simple injuries. In the FIR (Ext. D-8) lodged by Mishrilal also, the presence of Ashok at the place of occurrence was not mentioned. It is in these circumstances, the presence of Ashok Kumar at the place of incident is not free from doubt. He must, therefore, be entitled to the benefit of doubt.
XI. Learned counsel also submitted that the injuries of the accused when they were unexplained also cast a doubt on the case of the prosecution.
XII. The letters sent to the police with regard to threats were also not produced.
XIII. The learned counsel submitted that if the statement of the doctor was seen it would become evident that there was no blackening or tattooing either on the injuries of the deceased or on the injuries of the injured. This falsifies the story of the prosecution further that firing was done from a very close distance.
XIV. The jacket which, as per the P.W.-1 had blood, was never produced.
27. Learned Additional Advocate General Sri Anoop Trivedi assisted by Sri Pankaj Kumar learned AGA and Sri Amit Sinha learned AGA, from the side of the State, submitted that if the points A and B in the sketch map were wrongly given in the site plan then it did not make any difference. He relied upon a catena of judgments reported in AIR 1962 SC 399 : Tori Singh and Another vs. State of Uttar Pradesh, AIR 2011 SC 184 : Maqbool alias Zubir alias Shahnawaz and another vs. State of Andhra Pradesh , 1996 AIR SC 3136 : Jagdish Narain and another vs. State of U.P., 1999 SCC 8 715 : State of Karnataka vs. K. Yarappa Reddy, 1996 SCC 9 40 : Har Shanker vs. State of U.P., 2011 AIR SC 3380 : State of Rajasthan vs. Arjun Singh and others, (2005) 7 SCC 408 : State of Punjab vs. Hakam Singh, (2004) 3 SCC 654 : Dhanaj Singh alias Shera and others vs. State of Punjab, 2015 AIR SC 3043 : V.K. Mishra and another vs. State of Uttarakhand and another, 2012 AIR SC 3046 : Dayal Singh and others vs. State of Uttaranchal, 2010 AIR SC 6704 : Brahm Swaroop and another vs. State of Uttar Pradesh and submitted that if the site plan gave a story different from that of the prosecution then it mattered little. So far as the argument of the defence was concerned that when there was indiscriminate firing all who were present at the site ought to have been injured, learned counsel for the State submitted that no fixed formula can be enunciated and to support this proposition learned counsel for the State relied upon 2003 (7) SCC 643: Sucha Singh and another vs. State of Punjab.
28. Learned counsel for the State further states that the motive for the assault was not there also did not hold much water. As when there was a direct eye-witness evidence then motive falls into insignificance. For this purpose, he relied upon AIR 1999 SC 1293 : State of Himachal Pradesh vs. Jeet Singh, AIR 2004 SC 997 : Bikau Pandey and others vs. State of Bihar, and 1996 (9) SCC 40 : Hari Shanker vs. State of U.P.
29. Learned counsel for the State further stated that the submission of the learned counsel for the appellants that the case taken by the State with regard to the picking up of the evidence namely empty cartridges, etc. was was also not palatable. He submitted that every fact had to be looked into in its right perspective.
30. Learned Additional Advocate General also submitted that if the details in the FIR were missing then it mattered little. For this purpose, he relied upon 2003 SCC (2) 518 :Amar Singh vs. Balwinder Singh and others, and 2011 SCC (6) 288 : Brahm Swaroop and another vs. State of U.P.
31. With regard to the non-examination of relevant eye witnesses, the learned AGA submitted that if there was an eye-witness account and if his or her deposition was considered trustworthy then there was no requirement to examine all the eye-witnesses. Learned counsel relied upon 2013 (12) SCC 746 : Manjit Singh and another vs. State of Punjab and another.
32. Learned counsel for the State further replied to the argument of the learned counsel for the appellants that when the testimonies of P.W.-1 and P.W.-2 were unbelievable then the appeal should be allowed was misplaced as he submits that when the eye-witness account was there then minor discrepancies in the statements of P.W.-1 and P.W.-2 ought not to be looked into.
33. Learned AGA submitted that the argument of the appellants with regard to the fact that the injuries on the prosecution witnesses had not been explained, had no substance. He submits that this argument was made on the basis of the injury reports of Rakesh Nath Tiwari and Ved Mani Tiwari and Kamlesh Nath Tiwari. He submitted that Rakesh Nath Tiwari presented himself before the Emergency Medical Officer of Tej Bahadur Sapru Hospital on 17.12.2010 and his medical examination was shown to have been done at 10.50 PM. Ved Mani Tiwari presented himself at 11.10 PM on the same date and the accused Kamlesh Nath Tiwari had presented himself before the Medical Officer at 1.00 PM on 20.12.2010. Learned AGA submitted that Rakesh Nath Tiwari and Ved Mani Tiwari had produced themselves for medical examination more than 13 hours after the incident and Kamlesh Nath Tiwari had appeared almost after about 3 days. He submits that in between the place of occurrence and Tej Bahadur Sapru Hospital, the distance was 62 kms. and no examination or treatment at any of the private hospital or at any Primary Health Centre was done. He further submits that as per the cross-case, Dr. Ankit Raja and Dr. B.K. Singh, who were PW-5 and PW-7 in the cross-case, had clearly stated that they did not have any authority or jurisdiction to prepare such medical reports. He had stated that the injured were not sent to them along with any letter of the CMO or of the police. He, therefore, submits that every effort was made by the accused persons to escape the hands of law. Learned AGA also relied upon a judgment of the Supreme Court in Balu Sudam Khalde & Anr. vs. State of Maharashtra reported in AIR 2023 SC 1736 and stated that the accused persons were bound by the suggestions made to the prosecution witnesses and to the answers given by the said witnesses. He submits that when such questions were put to the PW-1 and PW-2, they had categorically stated that blood was found in the house and in the gallery of the house. So far as there being no attempt being made by the PW-1 and PW-2 to protect their father was concerned, learned AGA submitted that every individual has a different reaction to a particular incident. So far as the case of the defence with regard to there being no details in the FIR was concerned, learned AGA submitted that an FIR is not an encyclopedia of all the facts and non-mentioning of details has no bearing on the trial of the case. While answering to the submissions of learned counsel for the appellants that the prosecution had not produced the relevant witnesses along with the driver of the jeep, learned AGA submitted that this omission on the part of the prosecution would not change the case of the prosecution and that minor contradictions are always there when statements are being recorded.
34. Having heard the learned counsel for the appellants Sri Manish Tiwari, learned Senior Counsel, assisted by Sri Rajeev Lochan Shukla, Sri Atharva Dixit, Ms. Shriyanshi Upadhyay, Sri Shashank Pandey and Sri Raghuvansh Mishra, Advocates and Sri Anoop Trivedi assisted by Sri Pankaj Kumar learned AGA and Sri Amit Sinha learned AGA, from the side of the State, this Court is of the view that when the P.W.-1 had got the first information report lodged, the same was devoid of all the details. In fact, the first information report had stated that the incident had taken place inside the house of the first informant and that the incident was witnessed by the elder brother of P.W.-1 Vyasji Tiwari, sisters-in-law of P.W.-1, namely, Sadhna Tiwari and Manju Tiwari and several other villagers. In fact, we find from the assessment of all the evidence there on record, specially from the site plan, statement of P.W.-7 and that of the P.W.-10, that the incident had occurred much away from the house and never definitely inside the house. No tell tale signs of the incident were to be found inside the house and also no signs of indiscriminate firing were to be found either on the walls or on the roofs. Definitely when the injured witness was giving his testimony there could have been a possibility that the other witnesses were not produced. But in the instant case when the P.W.-1 was giving a version quite different from that of the P.W.7, the Investigating Officer and the P.W.-2 had not spoken for quite some time then the fact that the other eye-witnesses did not appear in the witness-box makes the case of the prosecution very weak.
35. The blood stains which as per the FIR were to be found inside the house were, in fact, found outside the house. In fact, subsequently in the cross-examination the P.W.-1 and P.W.-2 found it difficult to resile from their initial versions and could not shift the place of occurrence outside the house as per the site plan. It is the case of the prosecution that the accused had indiscriminately fired on the deceased and his other family members but, in fact, there were only two injuries of gun shot and there was absolutely no sign of any kind on the walls or the roofs of the house. We also find that the genesis of the case as stated by the P.W. 1 and 2 itself had been contradicted by the investigating officer i.e. the P.W.-7 and P.W.10 who gave an entirely different version of the occurrence. What is more even the clothes worn by the P.W.-1 had no blood stains despite the fact that he had taken the deceased person who was profusely bleeding to the hospital. Also another injured who was also sufficiently bleeding had been taken by P.W.-1 to the hospital. We also find that since the P.W.-1, namely, Vinay Tiwari was trying to strenuously develop the prosecution story, the Court at page 41 of the Paper Book had observed that he was giving replies during the cross-examination after much deliberation and afterthought. Even the lack of details could not be explained in the FIR by the P.W.-1 and he had given very lame explanations that he was in a state of shock and disbelief at the time of the lodging of the FIR. Also, his conduct if he was there at the site was not believable as he had not tried to save his father and brother at all despite the fact that he states he had a licensed revolver.
36. Ultimately, this Court finds that the P.W.-1 was a highly unbelievable eye-witness who in all probability was not even there at the site where the incident had happened and had reached the police station without visiting the house and had got the FIR lodged from whatever little information he had.
37. From the Panchayatnama also, we find that the witnesses present at the time of the Panchayatnama were Vyasji Tiwari, Ram Akshayvar Chaubey, Jagdish Prasad Dwivedi, Revanandan Dwivedi and Ashutosh Tiwari. The P.W.-1 was missing. In fact, Vyasji who had taken the dead body and the injured Vidhan Chand to the hospital never came to the witness box and, therefore, we conclusively come to this conclusion that the P.W.-1 was not present at the time of the incident. Only because the P.W.-1 had stated certain facts in the FIR, the P.W.-2 had also tried to be in rhythm with what had been stated in the FIR and therefore his version was also such which could not be corroborated by any evidence at all. We also find that that FSL report with regard to the fire arms which were allegedly recovered from the two accused Kamlesh Tiwari and Rakesh Tiwari also did not match the bullet which was found burried inside the body of the deceased Dayashankar Tiwari. No effort was made to get the bullet found inside the body of the deceased matched with the firearm of the P.W.-1 Vinay Kumar Tiwari.
38. The doctors version with regard to there being no tattooing or blackening falsifies the case of the prosecution further. The non-production of the jacket which had blood on it speaks volumes about the falsity of the case of the prosecution. Also, we are of the view that when the version of P.W.-1 and P.W.-2 did not match with versions of the Investigating Officers P.W.-7 and P.W.-10 then it was imperative that the brother of the P.W.-1 and P.W.-2, Vyasji Tiwari and the sisters-in-law, Manju Tiwari and Sadhna Tiwari ought to have been produced.
39. In such circumstances, the judgment and order dated 31.3.2022 passed by the Additional Sessions Judge, Court No. 11, Allahabad, in Sessions Trial No. 620 of 2011 (State vs. Rakesh Tiwari and another and Session Trial No. 1045 of 2011 (State vs. Kunjan Lal Tiwari and others) arising out of Case Crime No. 209 of 2010 under Sections 147, 148, 149, 302, 307, 452, 506 of IPC and Section 7 of the Criminal Law Amendment Act, Police Station - Manda, District Allahabad is quashed and is set aside. The criminal appeals No. 2516 of 2022 and 2518 of 2022 are, thus, allowed. The appellants in Criminal Appeal No. 2516 of 2022 and Criminal Appeal No. 2518 of 2022 are acquitted of all the charges. They be released if they are not required in any other case forthwith.
40. The Appeal with regard to the cross-case was also heard by us. The informants in Case Crime No. 209 of 2010 were made accused in Case Crime No. 15 of 2011, under Sections 307, 323, 324, 325, 504 and 506 IPC. We have gone through the record of the Appeal No. 952 of 2022 and the Government Appeal No. 388 of 2022 and find that for the proving of the case of the informant in Case Crime No. 15 of 2011 as many as 9 prosecution witnesses were examined. They were as follows: - P.W.-1 Vedmani Tiwari, P.W.-2 Kamlesh Nath Tiwari, P.W.-3, Rakesh Nath Tiwari, P.W.-4 Ram Jeevan, P.W.-5 Dr. Ankit Ram, P.W.-6 Dr. Rakesh Pathak, P.W. - 7 Dr. B.K. Singh, P.W.-8 Surendra Kumar Sharma and P.W. - 9 Dr. S.K. Rai.
41. So far as the cross case is concerned, the deposition of the doctors, PW-7 and PW-9, are of utmost importance. The PW-7 stated about the injuries on the person of Kamlesh Nath Tiwari son of Kunjan Lal Tiwari and had stated that the injured had got themselves examined without there being any recommendation from the C.M.O. or the police. The injuries were examined almost after 13 hours but there was no first aid on the injuries. PW-9 who was also a doctor, Dr. S.K. Rai, who had examined the injuries of Rakesh Nath Tiwari, in this case, had stated that he had also come on his own and there was no reference from any doctor or any police personnel. However, learned counsel for the appellants have taken the Court through the evidence as was led by the defence witnesses in the paper book of the Appeal which was filed by the convicted persons. In it, there was evidence of one Dr. Ankit Raja as D.W.-1, wherein he had stated that he had entered the injuries of the injured in a private medico legal register.
42. DW-2, A.C.P. Ram Jivan, who was the investigating officer of the cross case, had stated that he had lodged the F.I.R. after the orders of the Court under Section 156(3) of Cr.P.C. and had also stated that when the F.I.R. was lodged there was no injury report attached along with it.
43. DW-3 was Dr. B.K. Singh. He had examined the injuries of Kamlesh Nath Tiwari son of Kunjan Lal Tiwari and had stated that upon looking at the injuries he had suggested for x-ray. He had also stated that the injuries were shown to him after three days when they were sustained. He had also stated in his examination-in-chief that the injuries in the head could have proved fatal. He has however stated that the injuries were examined by him after three days without any medication being done by way of first aid.
44. DW-4 was Dr. S.K. Rai, Radiologist, who has stated that in the head of the injured Rakesh Nath Tiwari there was a palatal bone fracture which could have been dangerous for life.
45. DW-5, Manoj Kumar Shukla, was an eye-witness to prove the case of the defence in the main case and he has given quite a few statements in favour of the defence. He had also stated that the incident as was reported by the prosecution in the Case Crime No. 209 of 2010 was incorrect and the prosecution case in Case Crime No. 15 of 2011 against Vidhan Chandra Tiwari, Vinay Tiwari, Devendra Tiwari, Vyas Ji Tiwari and Dilip Tiwari was correct. He had stated that, in fact, he was an eye-witness and he had seen the same and that the accused persons in the 2010 case were not on the spot at all.
46. Also, in the cross case from the side of the defence, 7 witnesses, namely, Dr. Bhupendra Nath Srivastava, Dr. Santosh Kumar, Dr. S.P. Singh, Ram Jeevan, Satyaram Singh, Ramnaresh Patel, and Arun Kumar Pathak, were examined. After the judgment and order dated 29.3.2022 was passed by which the accused were acquitted the appeal against aquittal under Section 37 was filed by the complainants as Appeal No. 952 of 2022 and a government appeal being Government Appeal No. 388 of 2022.
47. Learned counsel for the appellants in this case has argued that the injuries on the side of the informant in Case Crime No. 15 of 2011 were not looked into and examined in their right perspective.
48. We find that the prosecution witnesses in the S.T. No. 1612 of 2011 were basing their case essentially on the facts that there were injuries on the side of the prosecution in this case and the defence in the S.T. No. 620 of 2011 and S.T. 1045 of 2022. We have gone through all the statements of the prosecution witnesses and find that essentially the doctors were of the view that the injuries though were very old but were never attended to in between the date when they occurred and when the injury report was being prepared. Also, we find that the injury report were never entered into any medico legal register. No explanation has been given with regard to the fact as to why the delay had occurred. What happened in the cases of the injured Ved Mani Tiwari and Rakesh Tiwari who were getting their injuries examined after almost 13 hours and in the case of Kamlesh Nath Tiwari who was getting his injury examined after a period of three days was not clear. Whether the injury was self inflicted in order to make out a case in their favour also was not clear. The delay in getting the injuries examined after such a long period definitely puts a question mark on the side of the prosecution in S.T. No. 1612 of 2011. Howsoever much the x-ray report etc. had been there but when they were not produced at the right moment and at the right place then it cannot be said that the prosecution in this case would get any benefit out of them.
49. Under such circumstances, we are of the view that the case of the prosecution in S.T. No. 1612 of 2011 is not proved. We are also of the view that if from the perusal of the evidence two views are possible and both views could be taken as correct then it is definitely our view that the judgement of the trial court should not be interfered with. We are supported by the judgement in Johar and Ors. vs. Mangal Prasad and Anr. reported in AIR 2008 SC 1165.
50. The Criminal Appeal U/S 372 Cr.P.C. No. 952 of 2022 is, thus, devoid of merit and is dismissed. The Government Appeal No. 388 of 2022 is also, thus, found to be devoid of merit and no leave to appeal is being granted.
51. In the end result, the Criminal No. 2516 of 2022 and Criminal Appeal No. 2518 of 2022 are allowed and the Criminal Appeal U/S 372 Cr.P.C. No. 952 of 2022 is dismissed. No leave to appeal in the Government Appeal No. 388 of 2022 is being granted.
Order Date :- 24.11.2025
GS/PK/M.S. ANSARI
(Madan Pal Singh,J.) (Siddhartha Varma,J.)
