Pankaj @ Pushpendra Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 13537 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 4006 of 2019 (PANKAJ @ PUSHPENDRA TIWARI AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 21-08-2023 Shri Ghanshyam Pandey- Advocate for the appellants

Shri Pramod Thakre- Government Advocate for the State.

Considered I.A.Nos.7972/2023 and 7971/2023, which are second interlocutory applications under sections 389(1) Cr.P.C. for suspension of sentence on behalf of appellant No.1 (Pankaj @ Pushpendra Tiwari) &

appellant No.2 (Pramod Tiwari) respectively are being decided by this common order.

2. Earlier applications being I.A.No.17129/2019 and I.A.No.8536/2019 filed on behalf of appellants No.1 & 2 were dismissed on 07.2.2023 & 30.8.2019 for want of prosecution and as not pressed respectively.

3. By the impugned judgment dated 16.4.2019 passed by First Additional Sessions Judge, Umaria in S.T.No.45/2013 the appellants/applicants have been convicted for offence under section 302/34 of the Indian Penal Code and sentenced to undergo Life Imprisonment each and fine of Rs.5000/- each

with default stipulations.

4. As per prosecution case on intervening night of 25th & 26th of November, 2012 one Shivbodh Tiwari expired. An FIR bearing Crime No.363/2012 at Police Station, Kotwali, District Umaria was lodged against unknown person. Allegations against the appellants/applicants is that in furtherance of common intention, they committed murder of deceased- Shivbodh Tiwari. After false and faulty investigation when nothing was actually recovered from the appellants, charge-sheet was filed and after trial appellants Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-08-2023 17:25:10

have been convicted and sentenced by the trial Court vide impugned judgment, as stated above.

5. Learned counsel for the appellants while pressing interlocutory application filed by appellant-Pankaj submitted that trial Court has gravely erred in convicting the appellant-Pankaj as Rammani Sakesh (PW.9) has stated in his statement under section 161 Cr.P.C. (Exhibit-D/2) that he saw Pramod on 24.11.2012, whereas the date of incident is intervening night of 25th & 26th of November, 2012. Similarly, no weapon has been recovered from accused- appellant (Pankaj). Regarding appellant-Pramod Tiwari it is submitted by him that he has been wrongly convicted on the strength of statement of PW.9

(Rammani Rakesh). It is also submitted that no weapon has been recovered from appellant-Pramod Tiwari. There is no clinching evidence on the basis of which it can be said that appellants have committed murder of deceased- Shivbodh Tiwari. It is further submitted that accused are innocent and have remained in custody till date for about 07 years. Hence, prayer has been made for suspension of sentence of the appellants.

6. On the other hand learned Government Advocate has supported the judgment of conviction & order of sentence and opposed the prayer for grant of suspension of sentence and grant of bail to appellants/applicants on the strength of written objection.

7. Heard learned counsel for the parties and perused the record of S.T.No.45/2013 arising out of Crime No.363/2012 of Police Station, Kotwali, District Umariya. Exhibit-P/5 is memorandum under section 27 of the Evidence Act of appellant-Pankaj and Exhibit-P/7 is memorandum of appellant-Pramod. As per Exhibit-P/6 a wooden stick has been recovered from appellant-Pankaj

Signature Not Verified on 29.11.2012 from Idea Tower Compound, village Waderi. Vide Exhibit-P/8 Signed by: RAJESH MAMTANI Signing time: 25-08-2023 17:25:10

on the same day in front of Ram Temple in village Waderi wooden stick was recovered from appellant-Pramod Tiwari. In the middle part some blood stains were seen. As per Exhibit-P/15, which is a postmortem report, the deceased died due to injuries caused by hard and blunt object within 24 hours which were sufficient to cause death. As per FSL report (Ex.P/22) the wooden sticks marked as E & F recovered from appellants-Pankaj & Pramod respectively, carried blood. There was human blood on the gloves marked as Article-C, which was recovered from the place of incident and article-E recovered from appellant-Pankaj.

8. The wife of deceased-Smt.Namita Tiwari (PW.07) in paragraph 02 of her examination-in-chief has stated that her husband had told the accused- Pankaj Tiwari not to come to his house and, therefore, she suspects that for the same reason her husband was murdered by accused-Pankaj. In paragraph 3 of her cross-examination she has again stated the same facts. Although in paragraph 06 when it was suggested that she had illicit relations with accused- Pankaj, which suggestion she has refuted and stated that accused person did not come to her house in the absence of her husband. In paragraph 10 again this witness was suggested that she had sweet relations with accused-Pankaj, which she denied.

9. The witness-Rammani Sakesh (PW.9) in paragraph 01 of his

examination-in-chief has suggested that he had gone to irrigate his crop and it was around 12 O' clock in the night, when he saw accused- Pramod, whom he identified in the Court (in trial), alongwith one other person on the road. He identified the accused in the headlight of a Truck. On the next day he came to know that deceased was murdered last night. He has further stated that accused Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-08-2023 17:25:10

persons were walking briskly and were looking back again & again, their such conduct was suspicious as to why they were doing so. In paragraph 3 of his cross-examination he has further deposed that he told the Police about identifying the accused in the headlight of truck, if the Police has not recorded the same in Exhibit-D/2 statement under section 161 Cr.P.C., he cannot give reason as to why the Police failed to do so.

10. Both the accused/appellants/applicants in their examination under section 313 Cr.P.C. have simply denied the prosecution story.

11. The trial Court in paragraph 16 of the impugned judgment has referred to incriminating circumstances against the accused persons stating that accused-Pankaj used to visit the house of deceased, which he did not like, and recovery of wooden stick/'Dandas' from the possession of appellants as per their memorandum under section 27 of the Evidence Act. The trial Court has elaborately dealt with all the circumstances in paragraphs 31 to 55 of the judgment and also referred to decision of the Supreme Court as to who is interested person and who is not and further that evidence of interested person has to be minutely observed and there is no rule that statement of interested person i.e. wife of deceased Smt.Namita Tiwari (PW.7) can be discarded totally on the ground of relationship. The Trial Court in paragraph 50 of the judgment has also dealt with the fact of specimen seal on the seizure memo or on the fact that no 'Malkhana' register was produced to establish that where seized 'Dandas' were kept and has referred to the decision in the case of C.Muniappan and others Vs. State of Tamil Nadu , (2010) 9 SCC 567 to answer the question of faulty investigation.

12. It is well established law that at the time of suspension of sentence meticulous evaluation of evidence is not done. As regards contradictions and Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-08-2023 17:25:10

omissions, in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217 the Apex Court in paragraph 5 has laid down following principles:-

"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a

Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 25-08-2023 17:25:10

short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

13. Considering the over all facts and circumstances of the case, nature of allegations against the appellants/accused/applicants, the evidence adduced by the parties in the trial Court, this Court does not find it to be a fit

case to suspend the jail sentence of the appellants/applicants and grant them benefit of bail at this stage. Thus, prayer for suspension of sentence on behalf of appellants stands rejected. with liberty to renew their prayer after serving actual custody period of 10 years.

14. It is made clear that above aspects have been considered only for deciding aforesaid interlocutory applications.

15. With above observation, I.A.No.7971/2022 & 7972/2022 stand dismissed.

                             (SUJOY PAUL)                                 (AVANINDRA KUMAR SINGH)
                                JUDGE                                              JUDGE

Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 25-08-2023
17:25:10

                           RM




Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 25-08-2023
17:25:10