Jata Shanker Tiwari vs State of U.P. and Others

Arvind Kumar Tripathi, J.—Mr. R.S. Mishra appeared on behalf of the appellant. Mr. V.P. Srivastava, learned senior counsel assisted by Mr. A.K. Yadav appeared on behalf of the accused-respondents. Learned A.G.A. appeared on behalf of the State. The present appeal under Section 372, Cr.P.C. on behalf of the complainant/victim has been preferred against the judgment and order of acquittal dated 14.10.2011 passed by Additional Sessions Judge, New Court No. 2, Jaunpur in Sessions Trial No. 408 of 1999, State v. Shyam Narayan Yadav and 6 others, under Section 302, I.P.C. read with Section 34, I.P.C. in respect of accused-respondents Shyam Narayan Yadav, Ram Lochan Yadav, Paras, and under Section 302, I.P.C. read with Section 120B, I.P.C. against accused-respondents Sant Ram, Vijayee and Ram Ashrey Yadav, arising out of Case Crime No. 429 of 1995 registered under Sections 302/34 and 302/120B, I.P.C., P.S., Machhalishahar, District Jaunpur.

Leave to appeal was allowed on 4.7.2013 and the appeal was admitted on the same day, i.e., 4.7.2013.

As per information, no Government appeal has been filed against above noted judgment of acquittal.

The F.I.R. was lodged by Jata Shanker Tiwari at P.S. Machhalishahar, District Jaunpur to the effect that on 17.11.1995, when he alongwith his brother (cousin) Mukesh Chandra Tiwari was returning from Machhalishahar to his house by motorcycle, his nephews Jawahar Lal Tiwari and Sahab Lal Tiwari were also returning to the house and they were following him. When both nephews reached near canal situated at east of the village Mujar, Since there was mud and water in the way and as such they slowed down the motorcycle. Accused-respondents Shyam Narayan, Ram Lochan, Paras and Rajendra appeared, exhorted and started firing with country-made pistol. Jawahar Lal fell down from motorcycle. Sahab Lal tried to run away, however, he was also shot at and he fell down. When informant and Mukesh challenged them, they turned and shot fire over them, however, no injury was caused. After that accused-respondents left the place of occurrence. They saw that Jawahar Lal and Sahab Lal had died on the spot. Due to incident of the year 1999 regarding murder of one Sriram Tiwari, there was enmity in the family of the informant and accused. F.I.R. was lodged and registered as Case Crime No. 429 of 1995, under Section 302, I.P.C. at 7.40 p.m. on the same day. Post-mortem on dead body of both the deceased were conducted on the next day, i.e., 18.11.1995.

After completing formalities and investigation, charge-sheet was submitted against Shyam Narayan Yadav, Ram Lochan Yadav, Paras, Sant Ram, Vijayee, Naresh, Ram Ashrey Yadav under Sections 302, 307 and 120B, I.P.C. Case was committed. Charge was framed under Section 302, I.P.C. read with Section 34, I.P.C. against Shyam Narayan Yadav, Ram Lochan Yadav and Paras and under Section 302, I.P.C. read with Section 120B, I.P.C. against Sant Ram, Vijayee and Naresh. They denied charges and pleaded for trial.

In support of prosecution version, prosecution examined 7 witnesses. P.W. 1 Jata Shanker Tiwari who lodged F.I.R. and is claiming to be eye-witness. P.W. 2 Mukesh Chandra Tiwari who is also claiming to be eye-witness. P.W. 3 Ram Iqbal who is witness of panchayatnama. P.W. 4 Dr. Harikant Tiwari who conducted post-mortem. P.W. 5 Shiv Das Singh who was Head Muharir who proved chick report. P.W. 6 Nihal Prasad who was Investigating Officer. P.W. 7 Ramniranjan Shukla who proved the document as a secondary evidence in absence of S.H.O. Hence, there are two witnesses of fact P.W. 1 and P.W. 2.

Learned counsel for the appellant submitted that judgment of trial court is perverse. Trial court committed manifest error in relying the certificate issued by jail authorities without getting it verified and proved. Incident is dated 17.11.1995 and in connivance of jail authorities and railway official, accused Shyam Narayan got him challaned under Indian Railway Act under Sections 137 and 139 on 16.11.1995 and since penalty for a sum of Rs. 400 could not be paid, he was sent for civil imprisonment for a period of 20 days. Hence, it is clear that he manipulated to show his jail custody though he was present on the spot. He fired causing death of deceased which is supported by both eye-witnesses P.W. 1 and P.W. 2. He further submitted that even in respect of co-accused Rajendra, he also manipulated to get report from the officer concerned that he joined duties on 17.11.1995 as he was posted in Border Security Force in Jammu and he left Allahabad on 16.11.1995. Hence, without getting those papers proved and verified, trial court accepted the plea of alibi and did not believe statement of reliable witnesses who were present on the spot. There was enmity in between families of the parties. Other accused-respondents were involved in conspiracy, however, all accused-respondents were acquitted. Hence, the impugned judgment of acquittal is liable to be quashed.

Mr. V.P. Srivastava vehemently opposed and submitted that plea of alibi was verified by Investigating Officer himself and it was found that Shyam Narayan was admitted in jail on 16.11.1995 and he remained there upto 5.12.1995, hence, on the date of incident, i.e., 17.11.1995 in view of certificate issued by jail authorities, he was in jail and was not present on the spot With regard to Rajendra also, he was on duty in Jammu where he joined on 17.11.1995 and for that he left Allahabad on 16.11.1995. Even charge-sheet was not submitted against co-accused Rajendra. Subsequently, application was moved under Section 319, Cr.P.C., which was also rejected on 28.1.2008 and that order has also become final. As far as other accused-respondents are concerned who were challaned and charged under Section 302, I.P.C. read with 120B, I.P.C. Neither there was any allegation in the examination-in-chief of witnesses of fact P.W. 1 and P.W. 2 nor there was any material regarding their involvement in the conspiracy. There is no illegality in the judgment and the same is based on evidence, hence, no interference is required and the appeal is liable to be dismissed.

Considered the submission of learned counsel for the parties and perused the record. Two witnesses of fact P.W. 1 Jata Shanker Tiwari and P.W. 2 Mukesh Chandra Tiwari were examined by prosecution who are claiming to be eye-witnesses and according to those witnesses, four accused-appellants Shyam Narain Yadav, Ram Lochan Yadav, Paras and Rajendra fired with country made pistol causing fire arm injury to deceased Jawahar Lal and Sahab Lal. According to post-mortem report, there was one wound of entry and one wound of exit were found on body of Jawahar Lal. Apart from one lacerated wound 2 cm. x 1 cm. skin deep on lateral part left arm 6 cm. above to left elbow joint, one wound of entry 1 cm. x 1 cm. on left side of forehead 1 cm. above left eyebrow (margin) no blackening and a wound of exit was found on person of deceased Sahab Lal Tiwari 4 cm. x 4 cm. on right side of ankle on chest behind nostril bone. The allegation was against four persons that they fired at deceased. When deceased Sahab Lal tried to run away then accused-appellant Shyam Narayan fired at Sahab Lal who after receiving fire arm injury fell down. When P.W. 1 and P.W. 2 challenged accused-respondents, they turned towards them and fired with country made pistol, however, no injury was caused.

Defence version of accused-respondents was that they were falsely implicated due to enmity. No one has seen the incident. F.I.R. is anti-time. Further, defence version of accused-respondent Shyam Narayan was that he was not present on the spot. Even accused Rajendra was also not present on the spot. Accused-respondent Shyam Narayan was in jail under Railway Act since penalty could not be paid on 16.11.1995, hence, he was sent to jail for 20 days and he was admitted in District Jail Varanasi which was verified by Investigating Officer, however, charge-sheet was filed against him. The claim of co-accused Rajendra is that he was in military services and posted in Border Security Force in Jammu where he joined on 17.11.1995 and he left village on 16.11.1995. The said fact was verified and no charge-sheet was submitted against him and he was exonerated. Subsequently, an application was moved under Section 319, Cr.P.C. to summon co-accused Rajendra, however, that application was rejected on 28.1.2008 and that order became final. Hence, presence of co-accused Rajendra on the spot could not be proved rather the same is doubtful though charge-sheet was submitted against accused Shyam Narayan, however, from perusal of the statement of Investigating Officer, it is clear that plea of alibi regarding his admission in District Jail, Varanasi on 16.11.1995 was verified and it was found that he was in jail since 16.11.1995 to 5.12.1995. Hence, he was also not present on the spot and his presence is doubtful. Then, the prosecution story that witnesses saw the incident itself appears doubtful. Both witnesses P.W. 1 and P.W. 2 were found to be chance witnesses and no other fact of witness has been examined by the trial court. The enmity was with P.W. 1. Had he been alongwith deceased then firstly he might have been shot at by the accused-respondents. As far as P.W. 2 is concerned, according to statement when he came to know that his nephews were going towards village by motorcycle then he also went to follow them. So it must have taken some time and his presence on the spot was found doubtful. As far as other accused-respondents are concerned who are charged under Section 302, I.P.C. read with Section 120B, I.P.C., there was no allegation against them in examination-in-chief of P.W. 1 and P.W. 2 that they were involved in conspiracy for murder of Jawahar Lal and Shahab Lal and on these circumstances, the trial court found presence of both alleged eyewitnesses doubtful on the spot. F.I.R. was only against four persons, however, charge-sheet was submitted against others with the allegation of involvement in conspiracy to commit murder.

There is no evidence that accused-respondents were aware that deceased would return at that time to their home through the place of occurrence. Hence, when prosecution itself after verification found that accused Shyam Narayan was admitted in jail and co-accused Rajendra was on duty in Jammu, then the prosecution story clearly appears to be doubtful. Hence, it is clear that no one saw the incident and merely due to enmity four persons were named in the F.I.R. and also allegation was made in statements. The trial court found presence of the witnesses doubtful. Though the incident took place but involvement of the accused-respondents was found doubtful as prosecution failed to prove the case beyond reasonable doubt.

When the appeal is filed against the judgment of acquittal then there is double presumption in favour of the accused, firstly presumption of innocence. Under the fundamental principle of criminal jurisprudence the every person shall be presumed to be innocent unless he is proved guilty by the court, and secondly the judgment of acquittal is in their favour hence presumption of their innocence is further reaffirmed and reinforced. Further, though the High Court in exercising the appellate power against the judgment of acquittal has full power to reappraise the evidence on which order of acquittal was based and to arrive its own conclusion. However, if both the views are reasonably possible, one supporting acquittal and the other indicating conviction then there should not be interference in the judgment of acquittal. When from appraisal of evidence it is found that the evidence is absolutely and clearly indicating guilt of the accused, the prosecution has succeeded to prove the guilt beyond reasonable doubt, no other view is possible than the order of conviction and the order of acquittal is found perverse and against the evidence on record, then the same would be liable for interference and to be set aside.

In view of the aforesaid discussion, it is not a fit case for interference in the impugned judgment and order of acquittal dated 14.10.2011 passed by learned trial Judge. Accordingly, the present appeal is hereby dismissed.