Dinesh Tiwari vs The State Of Bihar
2023 Latest Caselaw 5073 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.468 of 2015
        Arising Out of PS. Case No.-78 Year-2007 Thana- WARISLIGANJ District- Nawada
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1. Dinesh Tiwari Son of Late Bhagwat Tiwari, R/o Vill. - Sour, P.S. -

Warsaliganj, District - Nawada.

2. Ajit Tiwari, S/o Ramadhin Tiwari, R/o Vill - Rupoh, P.S. Kawakol, District -

Nawada.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr.Amresh Kumar Sinha, Adv.

For the Respondent/s : Mr.A.K. Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)

Date : 05-10-2023 Before beginning the discussion in the present appeal,

it is necessary to state that one of the appellants/Ajit Tiwari has

claimed his juvenility on the date of the occurrence. A Co-ordinate

Division Bench vide order dated 22.06.2017 directed the Juvenile

Justice Board, Nawada to enquire into the claim of the appellant as

per law after noticing the informant of the present case. In

pursuance of order dated 22.06.2017, the Juvenile Justice Board,

Nawada held enquiry with regard to the claim of juvenility of

appellant/Ajit Tiwari. The Principal Magistrate, Juvenile Justice

Board, Nawada reported that the appellant/Ajit Tiwari was a

juvenile on the date of the occurrence i.e. 26.07.2007 as per Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

statutory provision and on the basis of said enquiry report based on

relevant statutory provision, co-ordinate Division Bench of this

Court vide order dated 19.12.2018 granted bail to him.

2. Since the appellant/Ajit Tiwari (juvenile) has also

challenged the impugned judgment and order of conviction and

sentence, it is necessary to hear out his appeal alongwith the case

of appellant/Dinesh Tiwari.

3. This appeal is directed against the judgment of

conviction dated 21.02.2015 and order of sentence dated

25.02.2015 passed by learned Additional Sessions Judge-II,

Nawada in Sessions Trial No. 85 of 2008/ 157 of 2014 arising out

of Warisaliganj P.S. Case No. 78 of 2007, whereby the appellants

have been held guilty for the offences punishable under Sections

302/201/34 of the Indian Penal Code (hereinafter referred to as

'I.P.C.') and have been sentenced to undergo imprisonment for life,

to pay a fine of Rs.10,000/- each under Sections 302/34 of the

I.P.C.; rigorous imprisonment for three years, to pay a fine of

Rs.5,000/- each under Section 201/34 of the I.P.C. In default of

payment of fine, the appellants have been directed to suffer further

one year rigorous imprisonment. The sentences, however, have

been ordered to run concurrently.

Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

4. According to the fardbeyan (Ext.1/1) of the informant

/Lallan Paswan (PW-3) who is the Chowkidar of village-Saur, the

occurrence took place on 26.07.2007 at about 8:00 PM for which

fardbeyan was recorded by S.I., P. Kant of Warsaliganj police

station on 27.07.2007 at 01:15 hours at village Saur whereafter the

FIR was registered.

5. The prosecution case, in brief, is that on the fateful

day i.e. on 26.07.2007 at about 8:00 PM, hulla was heard in the

village-Saur that the appellants/Dinesh Tiwari and Ajit Tiwari have

committed the murder of wife of late Mithu Tiwari by pressing her

neck and have thrown the dead body in the village well. It has

been claimed by the informant that when he reached near the

house of appellant/Dinesh Tiwari, village people had gathered

there who were taking out the dead body from the well. He came

to learn that the reason behind the occurrence was an attempt to

usurping the property situated at Hosiarpur in Punjab which was in

the name of deceased. It was specifically stated that villagers are

the witnesses of the said occurrence.

6. On the basis of the fardbeyan of the informant/Lallan

Paswan, Warsaliganj P.S. Case No.78/07 dated 27.07.2007 was

registered under Sections 302, 201, 34 of the Indian Penal Code.

Routine investigation followed. The statement of the witnesses Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

came to be recorded and on completion of the investigation, the

appellants were charge-sheeted under Sections 302, 201/34 of the

I.P.C., whereafter cognizance was taken against the appellants

under the aforesaid sections. The learned Trial court was pleased to

frame charges against the appellants under Sections 302/34 and

201/34 of the I.P.C. Charges were read over and explained to the

appellants to which they pleaded not guilty and claimed to be tried.

7. In order to bring home the guilt of the appellants,

prosecution has examined altogether thirteen witnesses. PW-1

Vinod Kumar, PW-2 Parmanand Singh, PW-3 Lallan

Paswan/informant, PW-4 Naresh Tiwari, PW-5 Bipin Tiwari, PW-6

Awadhesh Tiwari, PW-7 Krishna Kumar Singh, PW-8 Ramcharitra

Singh, PW-9 Bindu Kumar Singh, PW-10 Poonam Kumari, PW-11

Aditya Narayan Pandey, PW-12 Dr. Nand Kishore Chaudhary and

PW-13 Pramod Kant (I.O.).

Prosecution has relied upon following documentary

evidence on record:-

Ext. 1- Signature of informant on fardbeyan proved by PW-3.

Ext. 1/1- Endorsement on the fardbeyan proved by PW-

13. Ext. 2- Postmortem report proved by PW-12.

Ext. 3- Fardbeyan proved by PW-13.

Ext. 4- Formal FIR proved by PW-13.

Ext. 5- Inquest report proved by PW-13.

Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

Defence of the appellants as gathered from the line of

cross-examination of prosecution witnesses as well as from the

statement under Section 313 of the Cr.P.C. is that of total denial.

8. After hearing the parties, the learned Trial court

convicted the appellants and sentenced them as aforesaid.

9. The learned counsel for the appellants has submitted

that the learned Trial court has not considered the fact that the

material witnesses are near relatives of the deceased, hence they

are all interested witnesses. None of the prosecution witnesses are

eye witness to the occurrence and the learned Trial court has not

considered the deposition of witnesses in proper perspective. On

the basis of deposition of PW-10, who is not an eye witness of the

occurrence, the appellants have been convicted by the Trial Court.

The Trial court has failed to consider that none of the witnesses

had stated that PW-10 was locked inside the room and was brought

out only after opening the door from outside. It has also not been

considered that none of the witnesses came forward to say that

they took out the dead body from well.

10. On the contrary, the learned Additional Public

Prosecutor has submitted that the judgment of conviction and

order of sentence passed by the Trial court is just and proper and is

based on the sound reasoning. He has further submitted that PW- Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

10 has clearly stated that she has seen the appellants who assaulted

her and pressed her neck. Her evidence is sufficient to justify the

conviction and sentence of the appellants

11. We have perused the impugned judgment and the

Trial court records.

12. It is necessary to analyze and evaluate the evidence

of witnesses adduced before the Trial court in the light of the

offence punishable under Sections 302/34 and 201/34 of the I.P.C.

13. It is necessary to analyze the evidence of PW-10

(Poonam Kumari) who claims herself to be an eye witness to the

occurrence. She has stated that the occurrence took place two

years ago at 08:00 PM. She narrated the story of prosecution that

appellant/Ajit Tiwari pressed the mouth and appellant/Dinesh

Tiwari pressed the neck of the deceased, due to which she died.

She has further stated that appellants threw the dead body in the

well. The villagers took out the dead body from the well. During

the cross examination, she has stated that she and her sister were

slapped by the appellants and both were locked inside the room.

She has further stated that when villagers came, they opened the

door.

14. Now, the testimony of said witness can be tested

upon the touchstone of the facts and materials available on record. Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

At the time of alleged occurrence, she was aged about 13 years.

None of the prosecution witnesses have stated that the daughter of

the deceased had seen the occurrence of killing of her mother. No

witness has stated that the daughter of deceased had been locked

inside the door and said door was opened by anyone of the

villagers/witnesses. Prudently and pragmatically, it cannot be

denied that those who were involved in killing of the deceased

would not spare anyone having seen the occurrence to reveal the

fact to others. In the background of the aforenoted facts of the

case, PW-10, who claimed to be the eye witness, cannot be relied

upon. Had she been an eye witness, her name would have been

stated in the fardbeyan or in the deposition of the prosecution

witness.

15. From the fardbeyan (Ext-1/1), which is based on

indirect source of information, it appears that none had seen the

occurrence. In the last portion of FIR, it is claimed that villagers

were the witnesses of the said occurrence. I.O. (PW-13) has clearly

stated in his deposition that no one was willing to lodge the

fardbeyan though there were about 25-30 people present at the

place of occurrence.

16. PW-1(Vinod Kumar) has stated that he had not seen

the occurrence and his statement was never recorded by the police. Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

He has not supported the case of prosecution and has been

declared hostile.

17. PW-2 (Parmanand Singh) has stated that on hulla, he

went to the spot and saw that the deceased had been thrown in the

well. He had heard that someone had killed her. He has also not

supported the case of the prosecution and has been declared

hostile.

18. PW-3(Lallan Paswan) is informant of the case. He

has stated that he did not know as to who had killed the deceased.

His statement was also not recorded by the police. He has also

been declared hostile.

19. PW-4 (Naresh Tiwari) has stated that when he

reached at the house of deceased, he saw her dead body. He is also

a hearsay witness and has not stated anything as to who had killed

the deceased.

20. PW-5 (Bipin Tiwari) has stated that when he

returned to the village after cremation, he knew that wife of Mithu

Tiwari had died. He heard a rumour that Dinesh Tiwari had killed

her. He has stated that late Mithu Tiwari has three daughters and

one son and all of them were present in the house at the time of

occurrence.

Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

21. Though PW-5 is not an eye witness of the

occurrence but he has given specific information of the fact that

the widow/deceased was not alone at her house. Three of her

daughters and one son were present in the house. If the evidence of

PW-5 is to be believed, then question arises as to why the other

members of the family have not been examined at the trial. Even

the I.O. has not given any detail regarding the family member of

the widow/deceased.

22. PW-6 (Awadhesh Tiwari) has stated that he had gone

to perform the last rites of his father and the appellant/Dinesh

Tiwari did not go there. He has stated that when he returned to the

village after performing the last rites, he saw that the villagers had

gathered there and the wife of late Mithu Tiwary was lying dead.

The villagers had kept the appellant/Dinesh Tiwary in

confinement. He has given specific information that when late

Mithu Tiwari was alive, he worked at a Gurudwara in Punjab. An

amount of approximately 4 lakhs was given to the deceased as ex-

gratia payment for the death of her husband. During the cross-

examination he stated that he did not know the killer.

23. PW-7 (Krishna Kumar Singh) has given a different

version of story viz. that the wife of late Mithu Tiwari fell in the

well and her dead body was kept in courtyard. Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

24. PW-8 (Ram Charitar Singh) has stated that on hulla,

he reached at the house of Dinesh Tiwari where he found the dead

body lying near the well. He has stated that on enquiry, the

appellants stated that they had killed the deceased by slitting her

neck and that they had thrown the dead body in well with a view to

usurp the property.

25. PW-9 (Bindu Kumar Singh) has stated that

appellants/Dinesh Tiwari and Ajit Tiwari had killed the wife of

Mithu Tiwari for three lakhs rupees. During the cross-examination,

he has stated that he did not see the occurrence.

26. PW-11 (Aditya Narayan Pandey) has stated that

when he returned from the last rites of one Bhagwat Tiwari, he

heard that wife of late Mithu Tiwari had been killed. He heard the

appellants/Dinesh Tiwari and Ajit Tiwari tell the villagers that they

committed the murder of deceased for getting the money received

from Punjab. He is not an eye witness to the occurrence.

27. PW-12 is Dr. Nand Kishore Chaudhary. He has

stated that on 27.07.2007, he was posted as Medical Officer at

Sadar Hospital, Nawada and on that date at 2:30 PM, he conducted

the autopsy over the dead body of Kalyani Devi and found the

following ante-mortem injuries:-

(i) Swelling over neck.

Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

On dissection- Trachea compressed and congested. Both chamber of the heart and empty. Lungs were pale and intact. All organs were pale and intact. Stomach and bladder empty, uterus normal.

Cause of death- asphyxia due to throttling. Time elapsed since death is within 24 hours. The postmortem report of Kalyani Devi was written and signed by him which stands marked as Ext. 2.

During the cross-examination, he has stated that due to

drowning, there may be a possibility of asphyxia and of swelling

on account of injury on neck.

28. PW-13 (Pramod Kant) is the I.O of the case. He has

stated that he learnt on the basis of rumour that the deceased had

been murdered by her family members and her dead body was

thrown in well. He reached the village Saur and recorded the

statement of Mahal chaukidar (informant) who put his signature on

fardbeyan, which stands marked as Ext. 3. He recorded the further

statement of the informant. He prepared the inquest report and

visited the place of occurrence. He did not find any blood at the

P.O. He has conceded that despite many villagers being present at

the P.O., no one was ready to give the fardbeyan. He had not found

any rope or sari at the place of occurrence.

Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

29. The I.O. did not make any investigation on the

point of property, which apparently was the reason for the murder.

One of the witnesses viz. PW-5 has clearly stated that the deceased

had three daughters and one son. Only PW-10 was cited as a

charge-sheet witness. The I.O. has not pointed out any reason for

not citing other family members as witnesses.

30. After going through the fardbeyan, it is not clear as

to who gave the information regarding the occurrence having been

committed by the appellants. The source of information appears to

be based on rumour.

31. PWs. 1, 2 and 3 have been declared hostile. PW-3

(informant) has taken U turn from his earlier version which is

mentioned in the fardbeyan. PWs. 4, 5, 6, 7, 8 and 9 are not eye

witnesses of the alleged occurrence. None of the prosecution

witnesses have stated that they saw that PW-10 had been locked

inside a room and was brought out later by opening the door of the

room.

32. It is necessary to examine the testimony of PW-10,

the so called eye witness to the alleged occurrence. She has told

the court that she has seen the appellants killing her mother. She

did not but say anything about the other members of her family. Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

The question arises as to how other family members who were

present in the house have not been examined.

33. Keeping in view the aforenoated reasons, her

version does not appear to be convincing and trustworthy.

34. Thus there is no eye witness to the occurrence,

which clearly appears from the fardbeyan itself. The source of

information is rumour and rumour alone. There is no direct source

of information regarding the killing of the deceased.

35. The facts and circumstances of the case do not

satisfy the five conditions of the rule of circumstantial evidence

which is as follows:-

(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

36. The finding of the Trial court is virtually based on

the evidence of PW-10. A deeper scrutiny of her testimony renders

it doubtful and therefore unreliable.

37. The motive behind the occurrence could not be

proved and as per the opinion of the doctor, asphyxia could be

caused by drowning and the injury could have been caused at the

time of falling in well. Hence, the possibility of death by falling

in well cannot be ruled out. In this background, it is difficult to

rely upon the version of PW-10 and in the light of aforenoted

reason, the judgment of conviction and order of sentence passed

by the Trial court is not justified.

38. Thus, the conviction and sentence of the appellants

are set aside and the appellants are acquitted of the charges

levelled against them.

39. The appellant/Ajit Tiwari is on bail. His liabilities

under the bail bonds is cancelled.

Patna High Court CR. APP (DB) No.468 of 2015 dt.05-10-2023

40. The appellant/Dinesh Tiwari is in custody. He is

directed to be set at liberty forthwith, unless his detention is

required in any other case.

41. The appeal stands allowed.

42. Let a copy of this judgment be dispatched to the

Superintendent of the concerned Jail forthwith for compliance and

for the purposes of record.

43. The records of these appeals be returned to the Trial

court forthwith.

44. Interlocutory application/s, if any, also stand

disposed off accordingly.

(Alok Kumar Pandey, J)

(Ashutosh Kumar, J)

amitkumar/-

shahzad
AFR/NAFR                NAFR
CAV DATE                20.09.2023
Uploading Date          05.10.2023
Transmission Date       05.10.2023