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2000 DIGILAW 1235 (PAT)

Gopal Tiwari v. State of Bihar

2000-11-11

P.K.DEB, SHIVA KIRTI SINGH

body2000
JUDGMENT P.K. DEB, J.- This appeal has been preferred against the judgment and order, dated 16.10.1993 passed by the then 5th Additional Sessions Judge, Gaya, in Sessions Trial No. 23/89 (87/89), whereby and whereunder, the appellant Gopal Tiwari had been convicted under Sections 302/394, IPC read with Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life under Section 302 IPC, rigorous imprisonment for two years under Section 394, IPC and rigorous imprisonment for one year under Section 27 of the Arms Act. But, all the sentences have been directed to run concurrently. The accused-appellant, Gopal Tiwari and co-accused Ashok Kumar have been charge-sheeted in the same case under Section 302 and 394, IPC, and 27 of he Arms Act in Gaya Kotwali PS Case No 104/87. On commitment, both of them were charged under Section 394, IPC and while accused-appellant, Gopal Tiwari was separately charged under Section 302, IPC read with Section 27 of the Arms Act and the co-accused, Ashok Kumar was separately charged under Section 302/109, IPC, While the trial was going on and at the stage when statements of the accused persons were to be recorded under Section 313, Cr PC, accused-appellant, Gopal Tiwari absconded and then the case was split up and proceeded against co-accused, Ashok Kumar alone and by judgment and order, dated 7.5.1991 he was acquitted on benefit of doubt. After accused-appellant, Gopal Tiwari was arrested in connection with another case, he was shown remanded in the present case and then the trial again proceeded against him. When all the evidence in the case were recorded earlier in presence of both the accused persons, no further evidence was taken and only the statement of accused-appellant, Gopal Tiwari was recorded and then after hearing argument the impugned a judgment has been passed convicting and sentencing the accused-appellant as mentioned above. 2. The prosecution story runs as follows: PW 1 Shankar Prasad was having VCR shop near Chota Masjid in the town of Gaya and in his shop the informant PW 2, Pappu Kumar Srivastava and deceased Shatrughan worked as mechanics. 2. The prosecution story runs as follows: PW 1 Shankar Prasad was having VCR shop near Chota Masjid in the town of Gaya and in his shop the informant PW 2, Pappu Kumar Srivastava and deceased Shatrughan worked as mechanics. on 2.4.1987, it is the allegation of prosecution that the accused-appellant, Gopal Tiwari came to the shop of PW 1, Shankar Prasad and in his absence he booked with the brother of Shankar Prasad PW 4 Sanjay Kumar, VCR and Videography were to be taken at 4 p.m. on 2.4.1987 at his residence at village Ramdhanpur as there was griha pravesh and chheka at his residence. PW 4, Sanjay Kumar gave a chit wherein the name of Gopal Tiwari with address were written to his brother PW 1 Shankar Prasad on return to the shop. To verify the facts PW 1 Shankar Prasad on the next day in the morning hours, i.e., on 2.4.1987 visited Ramdhanpur village and while asking about the address at village Ramdhanpur, this accused Gopal Tiwari came forward, who was standing nearby and confirmed that he was the person, who had booked for VCR and Videography and it has been further alleged that accused-appellant, Gopal Tiwari had paid Rs. 200/- to PW 1 at his residence. As the age of Gopal Tiwari was not of respectable age PW 1 wanted to meet some elderly persons and parents of Gopal Tiwari. But, on the plea of being busy as stated by Gopal Tiwari, PW 1 could not meet any elderly persons in the house on his visit in the morning of hours of 2.4.1987. However, in the evening hours when co-accused Ashok Kumar came to shop of PW 1 Shankar Prasad as a messenger from accused-appellant Gopal Tiwari and with him as per direction of PW 1, deceased Shatrughan Prasad and the informant PW 2 Pappu Kumar started for Ramdhanpur along with Videography Camera, VCR, etc. being taken in an attachee. All the three went on a rickshaw. being taken in an attachee. All the three went on a rickshaw. When they reached the village Ramdhanpur at about 4.30 p.m. on the way they were stopped by accused-appellant Gopal Tiwari raising objection as to why they were late in coming when Videography was booked for 4 p.m. co-accused Ashok Kumar wanted to take away the Videography, Camera and accused-appellant Gopal Tiwari also tried to snatch away the attachee containing the articles for Videography and VCR as a result of which a scuffle started between Shatrughan Prasad and Gopal Tiwari. At this co-accused Ashok Kumar asked Gopal Tiwari to kill Shatrughan Prasad and Gopal Tiwari by his revolver shot at Shatrughan Prasad as a result of which he fell down. The accused-appellant Gopal Tiwari further brandished his revolver to scare out the persons nearby and the informant PW 2 Pappu Kumar Srivastava fled away from the place and informed the occurrence to his master PW 1 Shankar Prasad. Then PWs 1 and 2 came to the spot runngly and found that Shatrughan Prasad lying injured in a pool of blood at the place of occurrence. They took Shatrughan Prasad to Pilgrim Hospital, Gaya, and there met police and PW 2 gave his fardbeyan which was recorded by the officer-in-charge, Kotwali police station. The FIR was lodged at about 5.30 p.m. on 2.4.1987 when the occurrence took place about 4.30 p.m. At this, a case was registered under Sections 394/307, IPC. The Doctor of Pilgrim Hospital referred the injured Shatrughan Prasad to Patna for better treatment as his condition was precarious. But, while taking to Patna Shatrughan breathed his last due to injuries caused on his persons. The case was then converted under Section 302, IPC. Police held investigation and arrested the accused persons. Post-mortem was held over the dead body of Shatrughan Prasad after holding inquest over it. Autopsy was held by PW 3 Doctor Kapildeo Prasad, who found the following injuries on the persons of the deceased : "Lacerated wound of size 2" x 1" x brian-deep over left parietal region of scalp. The margins of the wound were irregular, inverted and blackened. On dissection, the wound was passing anteriorly and downwards. Left side of brain was found lacerated. The margins of the wound were irregular, inverted and blackened. On dissection, the wound was passing anteriorly and downwards. Left side of brain was found lacerated. A long material foreign body (seems to be bullet) was found embedded in tissues of left side of the brain which was taken out sealed in a container, and was made over to the constable, who accompanied the dead body." 3. As per the opinion of the Doctor, the injury was caused by fire-arm and it was ante-mortem, grievous, sufficient to cause death. The Doctor further opined that the death was due to compression and shock as a result of which the injury sustained. 4. After investigation charge-sheet was submitted against both the accused persons, namely, accused appellant Gopal Tiwari and co-accused Ashok Kumar under Sections 302/394, IPC and 109, IPC read with Section 27 of the Arms Act. 5. On being committed to Sessions charges were framed as already mentioned above against both the accused persons which were read over and explained to them to which they pleaded not guilty. 6. For and on behalf of the prosecution only five witnesses have been examined. The star witness being PW 2 Pappu Kumar Srivastava, who was not only the informant but also sole eye-witness to the occurrence. PW 1, Shankar Prasad did not see the occurrence. But, he came to the place of occurrence on being informed by PW 2. PW 4 Sanjay Kumar is the brother of PW 1 Shankar Prasad. He has just been tendered. PW 3, Doctor Kapildeo Prasad held autopsy over the dead body of Shatrughan Prasad. PW 5 Ramashis Sharma is ASI of police, who held just proved formally the FIR. The Investigating Officer in the case was not examined as it was reported to the Court that he had already gone on retirement and he was not in a position to walk. 7. Defence has not adduced any evidence as their case was of total denial. 8. Thus, the prosecution case is wrested on the sole eye-witness and informant PW 2 Pappu Kumar Srivastava. There were some contradictions in the prosecution story as per the evidence adduced by PW 2 and PW 1, who was a reported witness. As per PW 1 both the accused persons came to the shop in the evening for taking the mechanic. Thus, the prosecution case is wrested on the sole eye-witness and informant PW 2 Pappu Kumar Srivastava. There were some contradictions in the prosecution story as per the evidence adduced by PW 2 and PW 1, who was a reported witness. As per PW 1 both the accused persons came to the shop in the evening for taking the mechanic. But, according to PW 2, only co-accused Ashok Kumar came along with whom they had proceeded towards the village Ramdhanpur. The contradiction remained that if really the accused-appellant Gopal Tiwari also came to the shop of PW 1 for taking tile deceased and the informant then there was no reason as to why he would object regarding the delay in going to perform contractual work. However, although these contradictions and discrepancies were mentioned in the earlier judgment by which co-accused Ashok Kumar was granted acquittal, but the main ground of acquittal was on the issue of identification of the eye-witness and the Informant PW 2 Pappu Kumar Srivastava. During the course of trial after the evidence of PW 2 Pappu Kumar Srivastava was recorded, a petition was filed from the side of the defence (when both the persons accused-appellant Gopal Tiwari and Ashok Kumar were being tried jointly) that there was vast difference in the handwriting and signature of PW 2 Pappu Kumar Srivastava with that of the signature as recorded in the FIR and fardbeyan Ext. 3. The learned Sessions Judge on comparison on naked eye could find that the signatures are of different persons and as such he asked for further cross-examination of PW 2 at the instance of the accused. But, he was not produced and it was reported that he could not be found at his residence. 9. While writing the earlier judgment the learned Court below held that the prosecution failed to show that PW 2 was the real Pappu Kumar Srivastava, who was present at the place of occurrence and who informed about the occurrence before the police and when such identity has become questionable then there was no scope to arrive at a conviction on the sole evidence adduced by PW 2. 10. 10. It has already been mentioned that when the accused-appellant Gopal Tiwari was tried after being arrested on absconding, no further evidence has been recorded for and on behalf of the prosecution as evidence was already recorded in presence of the present accused-appellant Gopal Tiwari also while he was being tried jointly with the co-accused Ashok Kumar. Only, liberty was given to the present accused-appellant as to whether he pressed again for re-examination of PW 2. But, he declined to press the same. It is after taking his statement under Section 313. Cr PC and after hearing argument, the impugned judgment has been passed. The learned Sessions Judge relied on the sole evidence of PW 2 to arrive at conviction in the impugned judgment. This point was urged before the Court below regarding the identification of PW 2 but that has been turned down by the learned Sessions Judge by giving the following observations: "In my opinion, when once the prayer for further cross-examination of PW 2 has been withdrawn, it was not open for the defence lawyer to argue that the signature of Pappu Kumar Srivastava on the fardbeyan and the deposition was different. Moreover, I do not find any suggestion on behalf of defence to PW 2 that his signature of the fardbeyan and the deposition was different." It appears that the learned Court below has considered the matter completely on wrong angle and misconception of law. In criminal cases, no burden lies on the accused to prove or disprove any fact. It solely lies on the prosecution beyond all reasonable doubt. In the earlier judgment, the same Court held that on naked eye itself the signature were found to be different and that factum has not been reversed by the same court while passing the impugned judgment. So, the factum remains that the signatures of PW 2 were different in Ext. 3 fardbeyan and the deposition recorded in the Court which raises suspicion as to whether the informant and PW 2 were same person or not. 11. Defence lawyer was not to press for proper identification of PW 2 Pappu Kumar Srivastava. When doubt has been created the same requires to be thrashed out from the side of the prosecution itself. Unnecessarily, the learned Court below on mis-conception of law put the burden on the defence. Moreover, the learned Court below has committed another error of facts. Defence lawyer was not to press for proper identification of PW 2 Pappu Kumar Srivastava. When doubt has been created the same requires to be thrashed out from the side of the prosecution itself. Unnecessarily, the learned Court below on mis-conception of law put the burden on the defence. Moreover, the learned Court below has committed another error of facts. The signature of PW 2 was taken after his deposition was concluded and till such signature was taken it was not revealed either to the Court or to the defence that PW 2 was not the real Pappu Kumar Srivastava, who had given fardbeyan and was the informant. So, there was no question of putting any question to PW 2 during the course of his evidence regarding his identity. It is the admitted position that the whole prosecution case is based on the evidence of PW 2, who was not only the informant but also eyewitness to the occurrence. Conviction can be passed on the evidence of sole eye-witness if the same is truthful one and bereft of any doubt about his veracity. But, here in the present case, the sole question remains as to whether PW 2 was the real person, who was present at the place of occurrence. As such doubt could not be set at rest from the side of the prosecution and in that way definitely the prosecution case itself becomes a doubtful one. I myself has compared the signatures as found in fardbeyan Ext. 3 and as recorded on the feet of the deposition of, PW 2. On the naked eye itself the signatures cannot be of a single person. Not only there is difference in lines in pressures in noddings but also it differs in spelling itself. If, it is construed that at different times by different pens signature of the same persons may differ in lines and pressures, but noddings and spelling can never differ. In Ext. 3, the word "Pappu" was written as "Pappu" and in deposition the same was written as "Pappu". So, on the face of it the person, who lodged the FIR is not the person, who deposed as PW 2 during the course of trial. 12. In Ext. 3, the word "Pappu" was written as "Pappu" and in deposition the same was written as "Pappu". So, on the face of it the person, who lodged the FIR is not the person, who deposed as PW 2 during the course of trial. 12. It has been argued strenuously by the State counsel and the private counsel for and on behalf of the informant to the effect that unless there is any expert's opinion there is no scope for the Court to come to a conclusion that the signatures were different. I am not convinced with such submission. A handwriting expert's opinion remains only an opinion and such opinion may give guidance in coming to a conclusion by a Court which always remains as expert of experts. In the present case, on the naked eye as mentioned above, it could be found that the signatures put in Ext. 3 fardbeyan and on the feet of the deposition of PW2 Pappu Kumar Srivastava a single person. In that way, when the ,prosecution had failed to establish the identity of the sole eye-witness regarding his presence at the place of occurrence, then the whole prosecution case falls down as castle of cards. 13. The learned defence counsel has also relied on an order of the Apex Court as reported in (1982)3 SCC 370 (II) (Bansilal v. The State of Madhya Pradesh and another) wherein it was held that in a same case when different accused were there and when the co-accused has been acquitted then the other co-accused should also get the same fate and it cannot be differently construed. But, that matter was considered in the light of Article 14 of the Constitution of India. The same analogy emerged may not be true in all the cases, circumstances might be different in a particular case. In the present case, the same judgment is definitely applicable because the evidence on which acquittal had been recorded in respect of co-accused Ashok Kumar remains the same in respect of the present accused-appellant Gopal Tiwari and the same analogy which had been drawn in respect of sole eye-witness also remains the same in case of the accused-appellant. In the present case, the same judgment is definitely applicable because the evidence on which acquittal had been recorded in respect of co-accused Ashok Kumar remains the same in respect of the present accused-appellant Gopal Tiwari and the same analogy which had been drawn in respect of sole eye-witness also remains the same in case of the accused-appellant. Thus, not only on point of law but also on factum established, I come to the conclusion that the accused-appellant Gopal Tiwari is entitled to get acquittal beyond doubt as per discussion made above which I do accordingly. 14. This criminal appeal is, thus, allowed. The impugned judgment of conviction is hereby set aside and the accused-appellant Gopal Tiwari may be set free forthwith if he is not wanted in any other case.