Jharkhand High Court
Puran Tiwary vs The State Of Bihar (Now Jharkhand) on 8 April, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Neutral Citation No. ( 2025:JHHC:10807-DB )
Criminal Appeal (DB) No. 135 of 1995(R)
(Against the judgment and order of conviction and sentence
dated 21.09.1995 (sentence passed on 22.09.1995) passed by
Sri Gopal Prasad, learned 6th Additional Sessions Judge,
Palamau, Daltonganj in S.T. No. 104/1990.)
Puran Tiwary, S/o Sri Giriwar Tiwari, R/o Vill- Peska,
P.S.- Meral, Dist.- Garhwa.
... Appellant
Versus
The State of Bihar (now Jharkhand) ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
----
For the Appellant : Mr. A.K. Kashyap, Sr. Adv.
For the Respondent : Mrs. Vandana Bharti, A.P.P.
----
CAV on : 25/02/2025 Pronounced on : 08/04/2025
Per Rongon Mukhopadhyay, J. :
1. Heard Mr. A. K. Kashyap, learned senior counsel for the
appellant and Mrs. Vandana Bharti, learned APP.
2. This appeal is directed against the judgment and order of
conviction and sentence, dated 21.09.1995 (sentence passed on
22.09.1995) passed by Sri Gopal Prasad, learned 6th Additional
Sessions Judge, Palamu at Daltonganj, in S.T. No. 104/1990
whereby and whereunder, the appellant has been convicted for the
offences punishable under Section 302 IPC and Section 27 Arms
Act and has been sentenced to imprisonment for life for the offence
under Section 302 IPC and one year rigorous imprisonment for the
offence under Section 27 Arms Act. Both the sentences were
directed to run concurrently.
3. The prosecution case arises out of the fardbeyan of Shiv
Lochan Sao recorded on 17.06.1989, in which it has been stated
that around 12:00 noon, Anil Sao had gone to the Post Office and
Neutral Citation No. ( 2025:JHHC:10807-DB )
Sanjay Sao had gone to the Public Distribution Shop to bring
wheat. It has been alleged that Puran Tiwary (appellant) had told
them as to why they disturb them when they go to the market at
which, none of the two persons gave any response. It has been
stated that at 6:00PM Ranjit Sao returned back to his house from
Meral and took Puran Tiwary towards his house to ask him about
his conduct. After some time, an information was received that
Puran Tiwary along with his men has surrounded Ranjit Sao in
order to commit his murder. At this information, the informant, his
son Binod Kumar and several villagers proceeded towards the said
place. At around 6:30PM, when they reached in front of the house
of Sita Sao, they saw Puran Tiwary, Alok Dubey, Girija Tiwari,
Ramadhar Dubey, Raja Dubey, Laxmi Dubey, Manoj Dubey,
Dhebar Dubey, Chandradhar Dubey and Brijdhar Dubey coming
and Puran Tiwary and Alok Dubey were armed with pistols.
Lakshmi Dubey was armed with gadasa and the others were armed
with lathis. The accused persons started committing assault at
which, the informant and his son suffered injuries. In the
meantime, Puran Tiwary fired a shot which hit the abdomen of the
son of the informant Sarjug Sao which resulted in Sarjug Sao falling
on the ground. The son of the informant was being taken on a cot
to Garhwa Hospital and on the way he died.
Based on the aforesaid allegations, Meral P.S. Case No. 32/89
was instituted. 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.
104/1990. Charge was framed against the accused under Section
148 and 302 IPC which was read over and explained to him in Hindi
to which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as ten witnesses in
support of its case:
P.W.1 Ram Kishor Mukti has proved the formal FIR which
has been marked as Exhibit-1.
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P.W.2 Bajrang Bali Prasad has stated that on 17.06.1989 at
6:00-6.30PM, he was going to Badhesar along with his brother
Manoj and as they reached near the door of Sarjan Mia, they saw
Ramadhar Dubey and Puran Tiwary coming and as soon as
Ramadhar Dubey issued a threat, he and his brother fled away
towards their house. On their raising a cry of alarm, Sarjug Sao and
Binod came to the said place. At the same time, Alok Dubey, Raja
Dubey, Lakshmi Dubey, Dhebar Dubey and Manoj Dubey came and
started assaulting Sarjug Sao with lathi. When Sarjug did not fall
down despite such assault, Ramadhar instigated Puran Tiwary to
fire at Sarjug Sao at which, Puran Tiwary immediately shot at him.
Sarjug Sao fell down due to the firearm injury. He thereafter, fled
away from the place of occurrence.
In cross-examination, he has deposed that he had told the
Police about Ramadhar Dubey ordering Puran Tiwary to fire. He
and his brother Manoj were surrounded by the accused persons
and assaulted with lathis. Sanjay and Binod had come to save
them. Sarjug also had a lathi with him. Only one firing was made
by Puran Tiwary from a distance of 4-6 degs.
P.W.3 Ram Lakhan Prasad has stated that he had come to
Hulhuliya village and on hearing a commotion, he went to the said
place where he saw Sarjug Sao being assaulted with lathi and
danda by Lakshmi Dubey, Alok Dubey, Raja Dubey and Dhebar
Dubey. In the meantime, at the instigation of Ramadhar Dubey,
Puran Tiwary had fired at Sarjug Sao, who fell down. The accused
persons had fled away. Sarjug Sao was being taken to Garhwa
Hospital and on the way, he died. He did not have any enmity with
the accused persons.
In cross-examination, he has deposed that when he came to
the place of occurrence, he had seen the two accused and Sarjug
Sao and none else. He had seen about 10-20 lathi blows raining
upon Sarjug Sao. After the firing was made, he had left for his
house. At the time of firing, Puran and Sarjug were standing at a
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distance of 3-4 degs. Only he had raised a cry of alarm, while the
others did not.
P.W.4 Manoj Kumar has stated that on 17.06.1989 at 6:00-
6:15PM, he was going with Bajrangi to Badesar Bhandar and as
they reached near the shop of Sarjan Mia, they saw Puran Tiwary
and Ramadhar Dubey coming from the western side. Ramadhar
Dubey asked Puran Tiwary to fire after giving some expletives at
which, he fled away towards the east. When he raised a cry of
alarm, Sarjug Sao and Binod Sao arrived and they were surrounded
and assaulted with lathis by Chandradhar Dubey, Giridhar Dubey,
Dhebar Dubey, Raja Dubey, Alok Dubey and Lakshmi Narayan
Dubey. The assault by Dhebar Dubey led to Binod suffering an
injury on his finger. Sarjug was trying to fend off the assault on him
with a lathi which was in his possession. Ramadhar Dubey asked
Puran Tiwary to shoot at Sarjug Sao and consequently, Puran
Tiwary resorted to firing and Sarjug Sao fell down on the ground.
Sarjug Sao was being taken to Garhwa and on the way, he breathed
his last. He cannot say the reason for the incident.
In cross-examination, he has deposed that he was standing
at a distance of 20 degs, from the place where Sarjug Sao was being
assaulted. He has deposed that Shiv Lochan on being assaulted
with lathi, had entered into the house of Ram Jee Sao and after a
minute the firing was made. He had not stated before the Police
that when the assault was in progress, there was a commotion.
Sarjug Sao and Binod had arrived and Puran Tiwary had shot at
Sarjug Sao. He cannot say as to what weapons were in the hand of
each of the assailants. There was only one firing done. He had seen
a pistol in the hand of Puran Tiwary. Lakshmi Dubey had struck
Sarjug Sao with a Gadasa 2-3 times. Sarjug Sao did not have any
enmity with the accused persons. He has further deposed that
Puran Tiwary was the agent of a bus.
P.W.5 Shiv Lochan Sao is the father of the deceased who has
stated that the incident is of two years back and he was in his house
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and on hearing a commotion that Mukhiya Ram Jee Sao is being
assaulted, he rushed out of his house and when he reached the
house of Sheel Sao, he had seen Ramadhar Dubey, Lakshmi Dubey,
Alok Dubey, Girdhar Dubey, Puran Tiwary, Chakradhar Dubey,
Brijdhar Dubey, Dhebar Dubey and Manoj Dubey. Puran Tiwary
and Alok Dubey had pistols in their hand, Lakshmi had a Gadasa,
while the others were in possession of lathis. Apart from these
persons, there were 25-30 persons present as well. Sarjug and
Binod were being assaulted with lathis. Ramadhar Dubey was
instigating to commit the murder of these two persons. Puran had
fired and the bullet struck Sarjug Sao, who fell down and he died
while being taken to the hospital. He has proved his signature in
the fardbeyan which has been marked as Exhibit-2. He and Binod
had also suffered lathi blows. The incident had occurred on account
of a quarrel which had taken place with respect to the fare of a bus.
In cross-examination, he has deposed that on getting the
news that Mukhiya is being assaulted, about 10-20 persons had
rushed to the place of occurrence to save him. Sarjug was fending
off the lathi blows. When the firing was made, he was present at
the spot. The firing by Puran was activated by Ramadhar Dubey.
He had not seen any injuries on the person of Sarjug Sao inflicted
with lathis. There was a gap of 2-4 minutes when he had reached
the place of occurrence and the accused persons having fled away.
When the lathi blows were being rained upon Sarjug Sao, he was
standing adjacent to Sarjug Sao and he had suffered a single lathi
blow upon his body. The person who had shot at Sarjug Sao was
standing at a distance of 5-7 degs. He did not have any enmity with
the villagers.
P.W.6 Basudev Prasad has proved the carbon copy of the
inquest report which has been marked as Exhibit-3. He has proved
his signature and the signature of the Mukhiya in the inquest
report which has been marked as Exhibit-4.
P.W.7 Binod Prasad is the younger brother of the deceased
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Sarjug Sao who has stated that Bajrangi and Manoj were going to
the Bhandar when there was an alarm that they were being
assaulted. He and Sarjug Sao reached the spot and as they neared
the house of Sita Sao, the accused persons Dhebar Dubey, Alok
Dubey, Brijdhar Dubey, Chakradhar Dubey, Girdhar Tiwari,
Lakshmi Dubey and Ramadhar Dubey started assaulting them with
lathis. He managed to get away from the said place. Ramadhar
Dubey asked Puran Tiwary to fire at which, Puran Tiwary shot at
Sanjay Sao who fell down injured. His father was also standing
nearby and he was also being assaulted.
In cross-examination, he has deposed that when he came out
of the house, he had seen Manoj and Bajrang being assaulted with
lathis. When the firing was made, he was standing behind Sarjug
Sao at a distance of 5 feet. His father was standing at a distance of
5-10 degs from him. When the firing was done, his father had
entered inside the room. The assault had taken place for about five
minutes. All the accused had surrounded Sarjug. Nobody had come
from the village on hearing the commotion. He and the others had
also wielded lathis, but nobody got injured.
P.W.8 Ram Jee Sao has stated that he was standing beneath
a banyan tree in front of the house of Girdhar Tiwari. He had told
Girdhar Tiwari that Anil Sao and Sanjay Sao were going to post a
letter in the Post Office, but Puran Tiwary and Dhebar Dubey had
prevented them from going. He had asked Girdhar Tiwari to
reprimand his son Puran Tiwary and advised him that no
misunderstanding should take place due to the acts of the children.
Thereafter, three persons remained with him while the rest went
towards the east. After about 15 minutes, he had heard the sound
of firing and when he went towards the source of firing, he found
Sarjug Sao lying on the ground in an injured state. While being
taken to Garhwa Hospital, Sarjug Sao died on the way. He has
proved his signature in the fardbeyan which has been marked as
Exhibit-2. He has proved the requisition of the dead body which
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has been marked as Exhibit-4.
In cross-examination, he has deposed that the persons who
were standing with him beneath the banyan tree were Chakradhar
Dubey, Manoj Dubey and Brajdhar Dubey.
P.W.9 Dr. Baleshwar Chaudhari was posted as a Deputy
Superintendent in Sadar Hospital and on 18.06.1989, he had
conducted autopsy on the dead body of Sarjug Sao and had found
the following:
(i) Abrasion 1" x 1/6" over the back of
the left forearm which was caused
by hard blunt substance.
(ii) Oval lacerated wound with
inverted margins ¾" x ½" over the
right iliac cosa. Skin around the
wound was blackish. This injury
was caused by fire arm.
(iii) There were 17 blackish spots over
the right lateral region of the chest
of size of ¼" x ¼".
(iv) Abdominal cavity contains blood
and blood clots.
The cause of death was opined to be due to shock and
hemorrhage causing extensive injuries to vital organs by firearms.
He has proved the post-mortem report which has been marked as
Exhibit-5.
P.W.10 Bisheshwar Kumar has proved pages 1-65 of the case
diary which has been marked as Exhibit-6. The pages 66-83 of the
case diary have been proved and marked as Exhibit-6/2. He has
also proved para 84-87 of the case diary and para 1-3 of the
supplementary case diary which have been marked as Exhibit-6/2
to 6/ 3 respectively.
5. The statement of the accused was recorded under Section 313
Cr.P.C. in which he has denied his complicity in committing the
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murder of Sarjug Sao.
6. Mr. A. K. Kashyap, learned senior counsel for the appellant
has submitted that there are major contradictions in the evidence
of the prosecution witnesses. The informant has developed his case
during trial as there is a marked difference in his fardbeyan and in
his testimony as P.W.5. The other accused persons have been
acquitted on the same set of evidence and therefore, the benefit of
doubt should also be extended to the appellant. No blood was seized
from the place of occurrence and the non-examination of the
Investigating Officer has prejudiced the case of the defence. Mr.
Kashyap, by way of an alternative argument, has submitted that at
best it can be a case under Section 304 Part II IPC as there was no
pre-meditation and the incident occurred at the spur of the moment
due to a quarrel. He has submitted that the appellant has spent
more than 9 years in custody.
7. Mrs. Vandana Bharti, learned APP has submitted that there
is a specific allegation against the appellant of firing at the
deceased. She has referred to the evidence of P.W.5 and P.W.7 who
are the eyewitnesses and were also injured in the indiscriminate
assault committed at which Mr. Kashyap has submitted that there
is no injury report on record which dilutes the assertion of P.W.5
and P.W.7 being the eyewitnesses.
8. We have heard the learned counsel for the respective parties
and have also perused the trial court records.
9. The precursor to the ultimate incident of murder as disclosed
in the fardbeyan, and as elaborated by P.W.8 seems to be the
appellant and Dhebar Dubey preventing Anil Sao and Sanjay Sao
to go to the Post Office. Although a note of caution was sounded by
P.W.8 that the dispute between the children should not escalate
and bring within its fold the elders, but it is apparent that the said
incident galvanized the accused persons who were variously armed
with pistol, gadasa and lathis to settle the issue of supremacy as
there seems to be some caste factors also in play which could be
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deciphered from the expletives used by Ramadhar Dubey while
goading the appellant to fire. The evidence of P.W.2, P.W.3, P.W.4,
P.W.5 and P.W.7 clearly reveal that it was the appellant who had
fired at Sarjug Sao resulting in his death. Though, the learned trial
court has acquitted the other accused persons, the same seems to
be on account of major contradictions and omissions on the part of
the prosecution witnesses but on a careful perusal of the evidence
of the eyewitnesses, the common thread which runs across their
evidence is of the appellant firing at the deceased. The submission
of Mr. Kashyap, learned senior counsel for the appellant that the
appellant should be similarly treated to the rest accused persons
who have been acquitted on the same set of evidence is, therefore,
negated by us. Moreover, the allegation against the appellant finds
support from the post-mortem report which reveals the cause of
death on account of firearm injury.
10. So far as the second limb of argument of Mr. Kashyap, learned
senior counsel with respect to the fact that an offence under Section
304 Part II IPC is made out is concerned, we reject such submission
primarily on account of the fact that the initial incident of
preventing Anil Sao and Sanjay Sao to visit the Post Office was by
the appellant also and his premeditation in committing the murder
springs from the fact that he was armed with a pistol and not with
other conventional weapons of assault like lathi. Absence of
repetition of shots would hardly be of any consequence since only
one shot was enough to cause death to Sarjug Sao. The keeping of
a dangerous weapon like a firearm and viewed in the background
of the assault would clearly signify that the appellant had a pre-
disposition to his ultimate act of firing and was equipped with the
intention of committing the murder. The prosecution has, therefore,
been able to prove its case beyond all reasonable doubt so far as
the appellant is concerned.
11. We, therefore, on the basis of the discussions made
hereinabove, do not find any merit in this appeal which accordingly
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stands dismissed.
12. Since the appellant is on bail, he is directed to surrender
immediately and forthwith to serve out the remaining part of his
sentence.
13. Pending I.A.s, if any, stands closed.
(RONGON MUKHOPADHYAY, J.)
(ARUN KUMAR RAI, J.)
Jharkhand High Court, Ranchi
Dated the 8th Day of April, 2025
Preet/N.A.F.R.
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