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2013 DIGILAW 192 (PAT)

Pasupati Nath Tiwary v. State of Bihar

2013-02-08

RAJENDRA KUMAR MISHRA

body2013
JUDGMENT (ORAL) R.K. Mishra, J. Heard learned counsel for the petitioner, learned A.P.P. for the State and learned counsel for the opposite party No. 2 and also perused the records of the case. 2. This Criminal Revision is directed against the Judgment and Order dated 13.2.2002 passed in Sessions Trial No. 409 of 1997 by the Court of 5th Additional Sessions Judge, Saran at Chapra, whereby the 5th Additional Sessions Judge, Saran at Chapra, acquitted the opposite party Nos. 2 to 4 of the charges under Sections 302/34 of the Indian Penal Code. 3. Learned counsel for the petitioner submits that out often witnesses examined on behalf of the petitioner, four witnesses. namely, Ajay Tiwary (PW 1), Vijay Kumar Tiwary (PW 2), Mukesh Tiwary (PW 3) and the informant. Pashupati Nath Tiwary (PW 7), who are the eye-witnesses to the occurrence, have supported the prosecution case but the learned 5th Additional Sessions Judge. Saran at Chapra. disbelieved their evidence and acquitted the opposite party Nos. 2 to 4 of the charges under Sections 302/34 of the Indian Penal Code, for which they faced trial, through the impugned Judgment and Order. 4. In brief, the prosecution case is that the informant. Pashupati Nath Tiwary (PW 7) gave his jardbeyan on 28.1.1997 at about 9.00 p.m. in his village Piparahaiyan. P.S. Ishuapur. District-Saran before the Sub Inspector of Police. P.N. Thakur (PW 10), to the effect that on 28.1.1997, he was sitting at his door. On that day at about 6.30 p.m., his villager, Rambabu Tiwary (not examined) came to his door and told that Hira Tiwary. Ramadhar Tiwary and Rajendra Tiwary, are causing assault at Dusadhtoli to his brother. Ram Ayodhya Tiwary. On which he alongwith his nephews, Ajay Tiwary (PW 1), Vijay Tiwary (PW 2) and son, Mukesh Tiwary. rushed to Dusadhtoli near the house of Chaukidar. Bihari Manjhi (PW 6) then they saw that in the south of the house of Mrigu Manjhi in the field of Salik Raut, his villagers. Ramadhar Tiwary and Rafendra Tiwary, had caught hold of his brother. Ram Ayodhya Tiwary, and Hiralal Tiwary was giving dagger blow to him. When he alongwith his nephews and son rushed there then they fled away from there and his brother. Ram Ayodhya Tiwary, fell down on the earth as his neck, cheek, nose and ears were cut. Ramadhar Tiwary and Rafendra Tiwary, had caught hold of his brother. Ram Ayodhya Tiwary, and Hiralal Tiwary was giving dagger blow to him. When he alongwith his nephews and son rushed there then they fled away from there and his brother. Ram Ayodhya Tiwary, fell down on the earth as his neck, cheek, nose and ears were cut. The said occurrence was seen by him and the above persons and the neighbours of Chaukidar. The cause of occurrence is said to be the dispute regarding the mango tree in between him and the accused persons. 5. From perusal of the impugned Judgment and Order, it appears that the learned 5th Additional Sessions Judge, Saran at Chapra, has discussed the oral and documentary evidence adduced on behalf of the prosecution and has disbelieved the oral testimony of the informant, Pasupati Nath Tiwary (PW 7). Ajay Tiwary (PW 1), Vijay Kumar Tiwary (PW 2) and Mukesh Tiwary (PW 3) on the following grounds. (i) That while the Jardbeyan of the informant, Pasupati Nath Tiwary (PW 7) was recorded on 28.1.1997 at 9.00 p.m. in the P.O. village at the distance of six kilometres from the police station but in the formal F.I.R., as drawn on the basis of the aforesaid fardbeyan of the informant, Pasupati Nath Tiwary (PW 7), the time of drawing the formal F.I.R. is mentioned as 8.30 p.m. (ii) That while Bihari Manjhi (PW 6) has stated in his evidence that he was informed by the informant. Pasupati Nath Tiwary (PW 7), about the occurrence with a direction to go to the police station for giving information and he went to the police station and Darogaji came with him on the spot, while Pashupati Nath Thakur (PW 10), who is the Investigating Officer of the case, has stated in his evidence about receiving the information of the occurrence by the Chaukidar and has also stated that after making Sanha Entry, he proceeded for the place of occurrence and rushed there at about 8.30 p.m. but the prosecution has not brought the Sanha Entry on the record. (iii) That while from the fardbeyan (Ext.4) of the informant. Pasupati Nath Tiwary (PW 7), it appears that he and his family members were informed by his villager. (iii) That while from the fardbeyan (Ext.4) of the informant. Pasupati Nath Tiwary (PW 7), it appears that he and his family members were informed by his villager. Rambabu Tiwary, then they proceeded for the place of occurrence but the statement of Rambabu Tiwary was not recorded by the police under Section 161 of the Code of Criminal Procedure whereas on the same day, the statements of other eye-witnesses. Ajay Tiwary' (PW 1), Vijay Kumar Tiwary (PW 2) and Mukesh Tiwary (PW 3). were recorded in the P.O. village under Section 161 of the Code of Criminal Procedure by the police. Pasupati Nath Thakur (PW 10), Investigating Officer of the case, has also not given any explanation about not recording the statement of Rambabu Tiwary under Section 161 of the Code of Criminal Procedure. (iv) That the time of occurrence is stated to be (6.30 p.m. on 28.1.1997 in the winter season. On that day, the time of sun set was about 5 to 5.30 p.m. As such, seeing the occurrence by the informant. Pasupati Nath Tiwary (PW 7) and other eye-witnesses, Ajay Tiwary (PW 1), Vijay Kumar Tiwary (PW 2) and Mukesh Tiwary (PW 3), is doubtful due to darkness without the source of light from the distance of 50 yards as stated by the aforesaid witnesses. (v) That the cause of occurrence is stated to be the dispute regarding the mango tree but the informant. Pasupati Nath Tiwary (PW 7), has stated in his cross-examination that the mango tree was cut by the prosecution party before 4 to 5 years to the occurrence and at that time no dispute was raised by the defence party. The accused, Hira Tiwary, had raised the dispute before 2 to 4 months to the occurrence claiming the same mango tree belonging to him, which also appears unbelievable. As such, the cause of occurrence has not been well established by the prosecution party. (vi) That while the informant. Pasupati Nath Tiwary (PW 7) has stated about seeing the occurrence by the residents of Dushadhtoli, whose houses were situated near the place of occurrence, but none of them have supported the prosecution case and all the eye-witnesses are interested witnesses and family members of the deceased and the informant. 6. On perusal of the records of the case and the impugned Judgment and Order. 6. On perusal of the records of the case and the impugned Judgment and Order. I find no illegality for interference in the impugned Judgment and Order in revisional jurisdiction. Accordingly, this Criminal Revision stands dismissed. Revision dismissed.