PAPPU TIWARY versus STATE OF JHARKHAND on 31 January 2022

1. On 07.03.2000 at about 1:00 p.m. Vikas Kumar Singh, agedabout 22 years was going from his house towards Bhandar for performingphysical exercise. It is the case of the prosecution that based on thefardbeyan of his younger brother, Pankaj Kumar Singh which wasrecorded at Sadar Hospital, Garhwa at 2:00 p.m., when Vikas KumarSingh reached in front of the house of Ramadhar Ram, all of a suddensix person who were sitting on the road surrounded him; namely PappuTiwari (appellant in Crl. A. No.1492/2021), Sanjay Ram, Uday Pal, AjayPal, Pintu Tiwari and Law Tiwari (appellant in Crl. A. No.1202-1203/2014). Pappu Tiwari fired from his pistol at Vikas Kumar Singh as aresult of which he got injured and fell down by the side of the road. Theother accused are alleged to have been carrying knives and they pouncedupon him and inflicted knife blows on his entire body. Hearing thecommotion, Pankaj Kumar Singh rushed in the direction. Seeing the saidinformant and other villagers coming, the accused persons fled towardsthe path made over the Ahar. They are stated to have also threatenedpersons present against giving any evidence in the matter. Later on, asper the informant, he claims to have derived knowledge that they fled ina Maruti Van bearing registration No.DL-2C-5177, which belonged toPintu Tiwari. On the basis of the fardbeyan, FIR Garhwa P.S. Case A

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ANo.33 of 2000 was registered under Sections 302 and 34 of the IndianPenal Code, 1860 (hereinafter referred to as the ‘IPC’) and Section 27of the Arms Act, 1959 (hereinafter referred to as the ‘Arms Act’) againstthe six named accused persons.

2. Assistance Sub-Inspector (for short ‘A.S.I’) Rajnikant JhaBprepared an inquest report but failed to identify the fire arm injury. Thepost-mortem was conducted by Dr. Mahesh Prasad Singh, MedicalOfficer, Sub-Divisional Hospital, Garhwa and the cause of death wasopined due to shock and haemorrhage caused by vital and multiple injuries.Injuries one and two were identified as firm arm injuries. The Marutivan was subsequently recovered on 09.03.2000. All the accused wereCarrested albeit, Law @ Upendra Tiwari was arrested on 16.03.2000.On investigation being completed, the chargesheet was submitted on02.06.2000 against all the six persons under Sections 302 and 34 of theIPC and Section 27 of the Arms Act and cognizance of the offence wastaken on the same date. The case was committed to the court of SessionsDJudge on 26.07.2000 where all six accused persons were charged underSection 302 read with Section 34 of the IPC and Pappu Tiwari wasadditionally charged under Section 27 of the Arms Act.

3. In the course of Sessions Trial No.159/2001, the prosecutionexamined 22 witnesses and the defence examined two witnesses. InEterms of the judgment dated 27.05.2002, all the accused persons wereconvicted as charged and in terms of order dated 28.05.2002, they weresentenced to undergo imprisonment for life. Pappu Tiwari was additionallysentenced to undergo rigorous imprisonment for three years under Section27 of the Arms Act.F4. The challenge to the judgment of the trial court was laid by twoseparate appeals. Law Tiwari and Pintu Tiwari jointly filed Criminal AppealNo.242/2002 while the remaining four convicts filed Criminal AppealNo.398/2002. The High Court of Jharkhand vide a common judgmentdated 07.05.2012 affirmed the judgment of conviction of the trial courtagainst all the six convicts. However, in pursuance of an inquiry conductedGby the learned Chief Judicial Magistrate on the aspect of juvenility, theHigh Court opined that since Pintu Tiwari was a minor on the date of theincident and had already remained in jail for more than three years, nofurther order of detention could be passed in view of the provisions ofSections 15 & 16 of the Juvenile Justice (Care and Protection of Children)HAct, 2000. Insofar as Sanjay Ram and Uday Pal are concerned, both of them accepted the High Court judgment. That left three appellants, whotook up the matter further to this Court.

5. Pappu Tiwari filed a Special Leave Petition (for short ‘SLP’)with an application seeking exemption from surrendering. That applicationwas dismissed by this Court on 09.11.2012 granting four weeks time toPappu Tiwari to surrender. On a prayer being made, a further extensionof four weeks was granted to Pappu Tiwari on 18.02.2013 to surrenderfailing which the SLP would be dismissed without reference to the Court.Pappu Tiwari did not surrender and, thus, the SLP came to be dismissedin terms of the order dated 18.02.2013.

6. Law @ Upendra Tiwari and Ajay Pal chose to jointly prefer anSLP along with an application for condonation of delay. The appealscame up for consideration on 19.11.2013 before this Court when theappeal qua Ajay Pal (petitioner No.2) was dismissed while issuing noticequa the appeal filed by Law Tiwari. On 07.05.2014, leave was grantedqua the said appeal which came to be registered as Criminal AppealNos.1202-1203/2014.

7. Pappu Tiwari was finally apprehended on 25.06.2015.Thereafter, he filed an application seeking restoration of his SLP andcondonation of delay in filing the restoration application but after issuingnotice, the same was dismissed on 07.03.2017 on the ground of failureto explain the delay of 862 days appropriately. Pappu Tiwari filed a reviewpetition along with an application seeking bail on 22.01.2021. The reviewpetition was considered and allowed on 27.01.2021. The appeals werethereafter directed to be listed.

8. In the mean time, Law Tiwari was released on 28.09.2016after having served out his sentence and, thus, on 01.09.2021 it wasinquired whether he was still interested in prosecuting the appeal to whichthe answer was in the affirmative as Law Tiwari wanted to argue theaspect of his conviction.

9. As far as Pappu Tiwari is concerned, his bail application wasdismissed on 04.10.2021 but with a direction for the appeal itself to betaken up for hearing. Leave was also granted in the said SLP on23.11.2021.

10. The aforesaid is the background on which these two appealswere listed before us for hearing.

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ACrl.A. Nos.1202-1203/2014 (Appeal by Law @ UpendraTiwari):

11. Insofar as Law Tiwari is concerned, a query was posed to thelearned counsel that on the appeal being jointly preferred by him (LawTiwari) and Ajay Pal and appeal of Ajay Pal having been dismissed, theBevidence being common, the role being common, i.e., five peoplecollectively inflicting knife injuries on the deceased after he was shot,what could be the defence, which would be available to Law Tiwari.

12. Learned counsel fairly stated that his appeal is within a limitedscope and this Court also admitted the appeal on his plea of alibi.

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13. Learned counsel drew our attention to the judgment of thetrial court as according to him there was hardly any discussion in theappellate court judgment on the particular aspect. The trial court referredto the depositions of the two defence witnesses, Rajendra Yadav (DW-1) and Samsuddin Ansari (DW-2). DW-1 deposed in his examination-in-Dchief that on 24.01.2000 he had x-rayed the right knee of Law @ UpendraTiwari. He proved the cash memo (Ex. A) and stated that he had x-rayed the knee on the advise of Dr. M.P. Singh. DW-2 stated that heknew Law @ Upendra Tiwari and on 24.01.2000, he had come to Garhwafrom Silliya Donger by bus. He saw Law Tiwari after falling frommotorcycle who was reeling in pain. He saw another man holding him.EA rickshaw was called and Law Tiwari was put on rickshaw and broughtto Garhwa Hospital to Dr. M.P. Singh, who advised an x-ray. The x-raywas done in Janta Clinic and the doctor had opined that his leg hadbroken near the knee. The man who is stated to have helped Law Tiwariwas identified as Kanchan Yadav. After handing over Law Tiwari toFhim, DW-2 went away.

14. Two witnesses were also examined as court witnesses on theprayer of the defence – Almuddin Khan (CW-1), who proved thecertificate of Dr. M.P. Singh (Ex. A) and receipt of medicine (Ex. A/1)as well as Akshay Kumar Mahto (CW-2) who stated that he knew LawGTiwari, that Law Tiwari had come to Garhwa for marketing, and hadgone to see the ailing son of his cousin, Mohan Prasad Mahto in hospital.He claimed to be a witness to the treatment and that Law @ UpendraTiwari was on bed with his leg plastered though he did not talk to him. Inview of the said testimony, the argument which was advanced beforethe trial court as recorded as also before us was that since on the date ofHthe occurrence his leg was fractured, it was not possible for Law Tiwari to have taken part in the crime and he was falsely implicated in the case.The trial court noted that neither the x-ray plate nor the advise of Dr.M.P. Singh had been produced in court. The doctor had also not beenproduced by the defence. No papers of admission or treatment at theGarhwa Hospital have been produced in support of the case of admissionor treatment of his fractured leg in hospital and the certificate did notsupport such a case.

15. On the other hand, the case of the prosecution was and is thatinter alia as per the fardbeyan, a formal FIR was registered in PS caseNo.6/2000 under Section 364, 365 and 120B of the IPC. The date ofoccurrence was 26.01.2000 and the allegation was of kidnapping forpurposes of murder in that case. Law Tiwari was named as an accusedin that case too. The occurrence was of 26.01.2000 and the defence isthat the leg of Law Tiwari was fractured on 24.01.2000. Law Tiwariwas convicted under Section 365 of the IPC vide judgment dated28.02.2000. We may, however, note that as per learned counsel for theappellant in the appeal filed against that conviction, Law Tiwari wasacquitted on 17.12.2005.

16. Learned counsel for the State also submitted that there arethree eye witnesses, Pankaj Kumar Singh (PW-6), Subodh Kumar Singh(PW-13) and Chandraman Singh (PW-18) and their testimonies havebroadly been consistent, which assign the role to Law Tiwari. Theendeavour to apprehend him on 07.03.2000 was not successful as hewas found absconding by the IO on six different occasions when hispremises were visited. He was only subsequently arrested and taken onremand on 04.04.2000. The contention of learned counsel for the Statewas that neither the advise of Dr. M.P. Singh nor the x-ray having beenproduced, and Dr. M.P. Singh not having been produced as a defencewitness or summoned, there was not a piece of paper evidencing theadmission and treatment of Law Tiwari in the hospital which could beproduced in support of his plea of alibi. He also drew our attention to thefardbeyan to indicate that Law Tiwari and other accused had demandeda motorcycle of the deceased to go to Meral in connection with a case,which was declined. Learned counsel for the State also submitted thatthe conduct of Law Tiwari even during custody was not proper as hehad extended a threat to the informant and the informant had sufferedfire arm injury on 13.06.2001. Consequently, case No.107/2001 wasregistered at the Garhwa Police Station. In the end it was contended A

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Athat there was no attempt made to distinguish the appellant’s role fromthat of Ajay Pal and the appeal of Ajay Pal being dismissed, the onlyaspect which had to be examined was whether the concurrent findingsof the two courts below rejecting the plea of alibi was required to beinterfered with by this Court when the burden lay heavy on the appellantas when such a plea is raised the accused must discharge that burden.BWe may refer to the judicial view in this behalf in Vijay Pal v. State(Government of NCT of Delhi)[1] wherein this Court held that:

“ 27. In our considered opinion, when the trial court as well asthe High Court have disbelieved the plea of alibi which is aconcurrent finding of fact, there is no warrant to dislodge theCsame. The evidence that has been adduced by the accused toprove the plea of alibi is sketchy and in fact foes not stand toreason. It is not a case where the accused has proven with absolutecertainty so as to exclude the possibility of his presence at theplace of occurrence. The evidence adduced by the accused is notDof such quality that the Court would entertain a reasonable doubt.The burden on the accused is rather heavy and he is required toestablish the plea of alibi with certitude.”

In Jitender Kumar v. State of Haryana[2] this Court stated that:

“71. …. The burden of establishing the plea of alibi lay upon theEappellants and the appellants have failed to bring on record anysuch evidence which would, even by reasonable probability,establish their plea of alibi. The plea of alibi in fact is required tobe proved with certainty so as to completely exclude the possibilityof the presence of the accused at the place of occurrence and inthe house which was the home of their relatives.”F

17. We have given our thought to the limited scope of appeal ofLaw Tiwari and we do not find any merit whatsoever in the same. It hasbeen rightly pointed out by the learned counsel for the State that theburden was on Law Tiwari to establish the plea of alibi (Vijay Pal[3] andGJitender Kumar[4]), which he failed to discharge. It was not a case whereopportunity was not granted to him. In fact, two witnesses were produced 1 (2015) 4 SCC 749

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in defence by Law Tiwari and two court witnesses were also summoned.However, the relevant evidence was not led.

18. It has been rightly pointed out that the most material witnesswould have been Dr. M.P. Singh, who was not produced as a defencewitness nor summoned.

19. We may note that there is some identity confusion in thejudgment of the trial court as a reference has been made to one Dr.M.P. Singh (PW-1), who is not the same doctor. The advise stated to begiven by Dr. M.P. Singh was also not proved nor was the x-ray plateproduced. DW-2 stated that he took Law Tiwari to Garhwa Hospital butno papers of admission or treatment at the hospital were produced insupport of the treatment of a fractured leg in the hospital. Thus, on allthese aspects Law Tiwari failed to discharge the burden to establish theplea of alibi and, thus, the trial court and the High Court cannot be said tohave fallen into any error in rejecting the plea of alibi. This was the onlyaspect to be examined by us.

20. We may note that there is discussion in the trial court judgmenton the aspect of another case registered against Law Tiwari and hisconviction in the said case. The incident was contemporaneous to hisalleged fracture and, thus, the plea based on the fracture was found tobe unsustainable as Law Tiwari was convicted in the said case. He has,however, filed the order of acquittal in appeal. This is the reason wehave not delved on this aspect but in view of our finding aforesaid thisaspect does not remain crucial.

21. The result of the aforesaid is that we find no merit in thecriminal appeal of Law @ Upendra Tiwari.

Crl.A. No.1492/2021 (Appeal by Pappu Tiwari):

22. Learned counsel for the appellant sought to raise multifariouspleas that the prosecution has to prove its case beyond reasonable doubt.This is not something which is really required to be stated and is thebasic principle of criminal jurisprudence. Suffice to say that learnedcounsel sought to build on that principle by contending that if a reasonabledoubt could be created in the story of the prosecution, the appellant mustsucceed.

23. In respect of the aforesaid, learned counsel sought to refer tothe testimonies of the eye witnesses. Pankaj Kumar Singh, the informant A

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Ais the brother of the deceased who was examined as PW-6. In thefardbeyan he had not taken the name of any witnesses though hereferred to them as “many witnesses”. It was stated that there wascontradiction in the testimonies of the eye witnesses. He furthersubmitted that PW-13 was a chance witness and that his presence atthe place was doubtful as he came to the area only ten days prior toBthe incident for appearing in the matriculation examination and couldnot have known anybody.

24. We may, however, note that on perusal of the evidence itcannot be said that there are any major discrepancies in the testimony ofthe eye witnesses as to throw doubt on the story of the prosecution.CThere are three eye witnesses. The testimony of the informant, PW-6,cannot be waived away merely because it is the testimony of a closerelative. Similarly, PW-13 albeit a chance witness, explained his presenceand stated that he could identify the accused, who were well-known inthe area, even though in a negative sense. We may note, however, insofarDas the third eye witness, PW-18, is concerned, the High Court has notrelied upon his testimony on account of delay of more than two monthsin examination of this witness who claimed to be an eye witness andwas the maternal uncle of the deceased.

25. Learned counsel vehemently sought to contend that the FIREwas ante timed and that itself would throw a doubt on the story. The FIRwas recorded on 07.03.2000 in the early afternoon but reached the courton the next date on 08.03.2000 even when the distance between thecourt and the police station was hardly a kilometre.

26. On the other hand learned counsel for the State pointed outFthat the incident occurred at 1300 hours on 07.03.2000, at 1343 hoursthe telephone call from the hospital reported that the injured had come tothe hospital and the time of the recording of the fardbeyan is 1400 hours.The inquest report was prepared at 1410 hours and the FIR was registeredat 1425 hours. The body was received for post-mortem at 1445 hoursGand simultaneously the IO reached the place of occurrence. The post-mortem commenced at 1550 hours. The IO returned home at midnightand had gone to the house of the accused several times. The FIR, thus,reached the court on 08.03.2000. These sequences of timings and dateswere pointed out to show that there could be no scope of ante dating theFIR.H

PAPPU TIWARY v. STATE OF JHARKHAND[SANJAY KISHAN KAUL, J.]

27. We may examine this aspect in the context of the judgmentcited by learned counsel for the appellant in Sudarshan & Anr. v. Stateof Maharashtra[5]. The relevant paragraph pointed out by learned counselfor the appellant shows that Column 15 of the FIR in the said casepertained to date and time of dispatch to the Court which was left blank.The IO could not prove as to when and how the FIR was sent to thecourt. The necessity of doing so was emphasised in the judgment as asthe primary purpose is to ensure that truthful version is recorded in theFIR and there is no manipulation or interpolation therein. That is thereason this statutory requirement is provided under Section 157 of theCode of Criminal Procedure, 1973 (hereinafter referred to as ‘theCr.P.C.’). There was grave suspicion qua the FIR.

28. On the touchstone of the principles laid down aforesaid it canhardly be said that the mandate of law under Section 157 Cr.P.C. hasnot been met. On the intimation of the incident, the fardbeyan wasrecorded expeditiously, inquest report prepared and the FIR was registeredwithin 25 minutes of the same. The body was sent for post-mortemimmediately and the FIR was sent to the court the next morning. Wecannot say that there is any loophole which could have been utilised orthat the FIR was ante timed and, thus, the objective of the requirementfor sending the FIR to the Magistrate has been complied with. Thus,there is no merit in this plea.

29. Now turning to the next plea on which a lot of emphasis wasplaced by learned counsel for the appellant, it was urged that there wasa major discrepancy between the inquest report (Ex.3) and the post-mortem report (Ex.1). This aspect was actually sought to be linked tothe plea of the FIR being ante timed. There are stated to be differencesin the version which would indicate that the fardbeyan was lodged onlyafter the post-mortem report. The factual basis for the same is stated tobe that in the inquest report six injuries are mentioned with no mention ofgunshot injury while the post-mortem report shows that there are 26injuries including the gunshot injury. The pistol was not recovered fromhim nor any cartridge found and A.S.I. Rajnikant Jha who recorded boththe fardbeyan as well as the inquest report was not examined by theprosecution. On this aspect learned counsel relied upon the observationsin Maula Bux & Ors. v. State of Rajasthan[6].

5 (2014) 12 SCC 312

6 (1983) 1 SCC 379

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5 (2014) 12 SCC 312

6 (1983) 1 SCC 379

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A30. On the other hand learned counsel for the State sought tosubmit that inquest report cannot be treated as substantive evidence butmay be utilised for contradicting the witness of inquest (Suresh Roy v.State of Bihar[7]). He submitted that the inquest report is not really anevidence by itself and cannot be pitted against the evidence of the medicalwitness in court (Surjan & Ors. v. State of Rajasthan[8]). LearnedBcounsel drew our attention to the observations in Pedda Narayana &Ors v. State of Andhra Pradesh[9]opining that the object of proceedingsunder Section 174 Cr.P.C. is merely to ascertain that whether the personhas died under suspicious circumstances or an unnatural death and if sowhat is the apparent cause of death. The details, however, as to how theCdeceased was assaulted or who assaulted him would be foreign to thescope of proceedings under Section 174 of the Cr.P.C., nor are suchdetails required to be mentioned in the inquest report (Yogesh Singh v.Mahabeer Singh & Ors.[10]).

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31. Learned counsel next turned to the more recent judgment ofDthis Court in Tehseen Poonawalla v. Union of India[11] opining that thepurpose of holding an inquest is limited and the inquest report does notconstitute substantive evidence. As compared to an inquest report, thedoctor who conducts the post-mortem examination, examines the bodyfrom a medico-legal perspective. It is, thus, the post-mortem report thatis expected to contain the details of injuries through a scientificEexamination. In that context he submitted that Maula Bux & Ors.[12]case did not help the appellant as a police officer who prepared theinquest panchnama is not an expert in medical jurisprudence.

32. On examination of the aforesaid pleas, insofar as the factualcontext is concerned, there is little doubt that there is not a minor but aFmajor difference in recording the number of injuries suffered by thedeceased in the inquest report and the post-mortem report. However,this will not be fatal in our view. We say so keeping in mind the purposeof an inquest report, which is not a substantive evidence. The objectiveis to find out whether a person who has died under suspiciouscircumstances, what may be the apparent cause of his death. In theG

7 (2000) 4 SCC 848 AIR 1956 SC 4259 (1975) 4 SCC 15310 (2017) 11 SCC 19511 (2018) 6 SCC 72H12 (supra)

present case the death was unnatural. There were wounds. There is nodoubt that it is a homicide case. The expert is the doctor who carries outthe post-mortem and has been medico legal expert. The two fire arminjuries have been clearly identified with the wounds at the entry and atthe exit being identified. We have already discussed the proximity of thetime period between the intimation and the police proceeding with itright up to the stage when the post-mortem commenced. We do not findany substance in this plea.

33. The third aspect emphasised by learned counsel for theappellant was the alleged discrepancy between the medical evidenceand ocular evidence. PW-1 found 26 injuries on carrying out the post-mortem on the deceased. Learned counsel pointed out that on beingasked about the distance from which the fire arm was used, he did notexpress any opinion. Learned counsel also points out that the case ofprosecution is that after the fire arm injury by Pappu Tiwari, the deceasedfell down and the other accused persons assaulted him with knives. Noexplanation is forthcoming on the backside of the deceased. As per thestory of the prosecution, the witness was going towards the gym ataround 1:00 p.m. but the post-mortem report reveals that the stomachwas empty and the rectum and the bladder full which would show thatthe person had not eased himself and had also not taken his breakfast.This should be a position in the morning hours and not in day time.

34. On the other hand, learned counsel for the State referred tothe testimony of the eye witnesses as also of the medical officer PW-1.On the issues such as what fire arm was used, whether the injurieswere caused by bullet or pellet and the distance from which the fire armwas used, it was submitted that where the weapon and ammunition is ofuncertain make and quality, the normal pellet pattern based on standardweapon and ammunition cannot be applied with accuracy (Prahlad Singh& Ors. v. State of M.P.[13]).

35. On consideration of this plea, we find that really there is nodiscrepancy between the medical and ocular evidence but too much issought to be made out by learned counsel for the appellant on the doctornot opining about the distance from which the fire arm injury was caused.Further, the eye witnesses are categorical that the other accused attackedthe deceased with knives. In such a process of five persons attackingthe deceased it cannot be said that the deceased would be lying in the AB

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Asame position and, thus, there is every possibility of injuries both at theback and front. In the nature of the incident and the testimony of the eyewitnesses, a doubt must be cast on the story and not merely some aspectof the food consumption pointed out. We cannot really see any suchinfirmity which would cause us to reverse the concurrent findings of thecourts below.B

36. The remaining arguments of learned counsel for the appellantare based on plea of defective investigation, absence of independentwitnesses but then there is no reason why the eye witnesses story, whichis believable should not be given full credence. The test which is appliedof proving the case beyond reasonable doubt does not mean that theCendeavour should be to nick pick and somehow find some excuse toobtain acquittal.

37. The last aspect urged by learned counsel for the appellantwas that the IO has referred to the antecedents of the appellant andother accused, which has been erroneously taken into account by theDHigh Court contrary to the statutory provisions of Section 53 of theIndian Evidence Act, 1872. The said provision stipulates that the previousbad character is not relevant except in reply, i.e., unless evidence hasbeen given of a good character in which case it becomes relevant.However, what has happened in the present case is that the part of theEtestimony of the IO that the accused persons were dangerous was notsupported by any evidence being led nor has it weighed with the courtsbelow. PW-13 was able to identify the appellants because they used topass through the road and are stated to have been known to be “boss ofthe area”. We are, thus, of the view that despite best endeavour learnedcounsel for the appellant has not been able to cast any doubt on theFimpugned judgment of the trial court and the High Court.

Conclusion:

38. In the conspectus of the discussion aforesaid, we are of theview that the story put forth by the prosecution has been established andGhas not been dented by the appellant accused so as to cast a doubt andentitle them to benefit of doubt. The result is that both the appeals aredismissed leaving the parties to bear their own costs.

Nidhi Jain(Assisted by : Tamana, LCRA)H