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2017 DIGILAW 2289 (ALL)

VIVEK TIWARI v. STATE OF U. P.

2017-10-05

BALA KRISHNA NARAYANA, RAHUL CHATURVEDI

body2017
JUDGMENT : (Delivered by Hon'ble Bala Krishna Narayana,J.) 1. This criminal appeal was heard by us on 5.10.2017 on which date we had passed the following orders : Criminal Appeal No. 6320 of 2011 "Heard Sri S.K. Verma, Senior Advocate assisted by Sri Mahesh Chandra Joshi, Sri Raghvendra learned counsel for the appellant, Sri Saghir Ahmad, Sri J.K. Upadhyay, learned A.G.As. and Smt. Manju Thakur, State Law Officer. We will give reasons later. But we make the operative order here and now. This criminal appeal is allowed. The impugned judgment and order 12.10.2011 passed by Additional District & Sessions Judge, Court No.11 in Sessions Trial No. 319 of 2008 ( State Vs. Vivek Tiwari), convicting and sentencing the appellant under Section 302 IPC, P.S. Khajni, District Gorakhpur to undergo life imprisonment are hereby set aside. The appellant are acquitted of all the charges framed against them. The appellant shall be released forthwith, unless he is wanted in any other case. There shall however be no order as to costs. " We are now giving reasons : 2. Briefly stated the facts of this case are that P. W. 1 informant Shiv Kumar Tripathi resident of Village Jhuriya, Police Station Khajani, District Gorakhpur gave a written report on 8.5.2008 at Police Station Khajani stating therein that on 7.5.2008 one Monu @ Manoj Shukla had gone to Haranhi crossing where one Yashwant Singh resident of the same village met him and slapped him 4 to 5 times. The aforesaid incident was broadcasted in the village by Vivek Tiwari who was a resident of the same village as Monu @ Manoj Shukla, proclaiming that he had got Monu @ Manoj Shukla beaten severely and on account of the aforesaid incident while Monu @ Manoj Shukla and Sandeep Tiwari son of Shiv Kumar Tiwari were sitting on the eastern bank of pond of village Jhuriya at about 5 PM, Vivek Tiwari son of Narayan Tiwari came on a motorcycle from the side of Haranhi crossing and on seeing Manoj Shukla and Sandeep Tiwari he fired a shot aimed at Manoj Shukla who had started running away on seeing him alongwith Sandeep Tiwari. The shot fired by appellant Vivek Tiwari hit Sandeep Tiwari and as a result he fell on the ground. He was taken to the hospital where he died during treatment. The shot fired by appellant Vivek Tiwari hit Sandeep Tiwari and as a result he fell on the ground. He was taken to the hospital where he died during treatment. The aforesaid incident had taken place in front of the house of Subhash Yadav and the same was also witnessed by P. W. 2 Gangesh Tiwari son of Sheshnath Tiwari resident of Village Jhuriya. 3. On the basis of the aforesaid written report Ext. Ka1, Case Crime No. 492 of 2008, under Section 302 IPC was registered against the appellant Vivek Tiwari. During the course of the investigation, the I.O. conducted the inquest on the dead body of Sandeep Tripathi and prepared the inquest report Ext. Ka2 and other related papers and then dispatched the dead body to the Sadar Hospital for conducting postmortem. The postmortem on the dead body of the deceased Sandeep Tiwari was conducted by P. W. 5 Dr. Vinod Kumar Mishra on 9.5.2008 at about 3 PM. He noted following ante-mortem injuries on the dead body of the deceased Sandeep Tiwari : (i) One oval wound of size 2 x 2.25 cm with blackening/charring (at rim) present at left shoulder blade. (ii) There is contusion over right hypochondriac of size 6 x 5 cm just below right subcostal rim, on dissecting the contusion a bullet recovered which as lacerated liver and overlying muscles and subcutaneous tissue. According to him the cause of death was haemorrhage and shock as a result of ante-mortem injury. 4. He inspected the place of occurrence and prepared it's site-plan, collected bloodstained and plain earth from the place of occurrence and prepared it's recovery memo and dispatched the seized articles to the forensic lab for chemical examination, recorded the statements of the informant and the other witnesses and after completing the investigation, filed charge-sheet under Section 302 IPC against the accused-appellant before CJM, Gorakhpur. 5. 5. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Session, the case was committed for the trial of the accused to the Court of Sessions Judge, Gorakhpur and registered as S.T. No. 319 of 2008 and made over for trial from there to the Court of Additional District and Sessions Judge, Court No. 11, Gorakhpur who after examining the material on record collected during the investigation and affording opportunity of hearing to the prosecution as well as the accused, framed charge under Section 302 IPC against the accused-appellant who abjured the charge and claimed trial. 6. The prosecution in order to prove it's case examined as many as 8 witnesses of whom P. W. 1 Shiv Kumar Tripathi, P. W. 2 Gangesh Tiwari, P. W. 3 Manoj Shukla were examined as witnesses of fact while P. W. 4 Head Moharrir Chandra Bhan Singh, P. W. 5 Dr. Vinod Kumar Misra, P. W. 6 Ram Preet Prasad, P. W. 7 S.I. Shashi Kant Pandey and P. W. 8 Saudagar Rai were produced as formal witnesses. 7. Apart from the oral evidence the prosecution also adduced documentary evidence comprising of written report Ext. Ka1, inquest report of the deceased Sandeep Tiwari, Ext. Ka2, Chek FIR, Ext. Ka3, G.D. No. 48 time 17:30 hours dated 8.5.2008, Ext. Ka4, postmortem report of the deceased, Ext. Ka5, letter addressed to C.M.O., Ext. Ka6, letter addressed to R.I., Ext. Ka7, challan nash, Ext. Ka8, photo nash, Ext. Ka9, site plan, Ext. Ka10, recovery memo of plain and bloodstained earth seized from the place of incident, Ext. Ka11, docket, Ext. Ka12, charge-sheet, Ext. Ka13, reports of the forensic lab Ext. Ka14 and Ext. Ka15. 8. After the prosecution evidence was closed, the accused-appellant Vivek Tiwari was examined under Section 313 Cr.P.C. and he in his statement recorded under Section 313 Cr.P.C. pleaded not guilty and alleged false implication in the present case at the behest of the local police. The accused-appellant however, did not examine any witness in defence. 9. Learned Additional District and Sessions Judge, Court No. 11, Gorakhpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record convicted the accused-appellant under Section 302 IPC and awarded aforesaid sentence to him. 10. The accused-appellant however, did not examine any witness in defence. 9. Learned Additional District and Sessions Judge, Court No. 11, Gorakhpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record convicted the accused-appellant under Section 302 IPC and awarded aforesaid sentence to him. 10. Learned counsel for the appellant submitted that out of the two so called eye witnesses of the occurrence examined by the prosecution during the trial to establish the charge framed against the accused-appellant Vivek Tiwari, P. W. 3 Manoj Shukla had failed to support the prosecution case and he was declared hostile while the testimony of P. W. 2 Gangesh Tiwari is full of material contradictions, improvements and discrepancies which totally belie his presence at the place of occurrence, at the time of incident and his claim of being the eye-witness of the occurrence. The prosecution has miserably failed to prove the motive for the accused-appellant to commit the offence. The recorded conviction of the accused-appellant on the basis of sole uncorroborated testimony of P. W. 2 Gangesh Tiwari who does not fall in the category of wholly reliable witness cannot be sustained and is liable to be set aside. FIR in this case is ante-timed. 11. Per contra Smt. Manju Thakur, State Law Officer appearing for the State submitted that there is no evidence on record showing that the FIR in this case is ante timed. The evidence of P. W. 1 Shiv Kumar Tripathi tendered before the trial court fully corroborates the prosecution case as spelt out in the FIR and there are no material inconsistencies in his testimony so as to render the same unreliable. The finding of the conviction recorded by the trial court which is based upon cogent evidence and supported by relevant considerations, does not suffer from any illegality or legal infirmity. This appeal lacks merit and is liable to be dismissed. 12. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove it's case against the accused-appellant beyond all reasonable doubts or not. 13. This appeal lacks merit and is liable to be dismissed. 12. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove it's case against the accused-appellant beyond all reasonable doubts or not. 13. Record shows that the FIR of the incident was lodged by P. W. 1 Shiv Kumar Triptahi who is neither an eye-witness of the main occurrence which had taken place on 8.5.2008 nor of the incident which had taken place on 7.5.2008 in which one Jaswant Singh resident of Haranhi had allegedly slapped Manoj Shukla and the accused-appellant had broadcasted the news of the aforesaid incident in the village proclaiming that Manoj Shukla was slapped by Jaswant Singh at his behest. The incident which had taken place on the next date was the outcome of the previous occurrence. P. W. 1 although proved the written report of the occurrence Ext. Ka1 in his examination-in-chief but he on page 16 of the paper book in his cross-examination has categorically deposed that the accused-appellant Vivek Tiwari had neither shot his son in his presence nor he was present at the place of occurrence at the time of incident. Manoj Shukla who was examined by the prosecution during the trial as one of the eye witness of the occurrence as P. W. 3 in his examination-in-chief although denied that he was sitting on the eastern bank of village pond Jhuriya on 8.5.2008 along with Sandeep Tiwari but he deposed that he was going alongwith with Sandeep Tiwari on his motorcycle to Haranhi on 8.5.2008 and as soon as they reached in front of the house of Subhash Yadav, some unknown persons shot Sandeep Tiwari with a country made pistol whom he could not recognize and accused-appellant Vivek Tiwari who was present from the Court had not shot the deceased Sandeep Tiwari. P. W. 3 was declared hostile on the request of the ADGC (Criminal) and subjected to a grueling cross-examination by him with the permission of the trial court. ADGC (Criminal) however failed to elicit anything out of him which may even remotely suggest that he had given false evidence before the trial court with the object of protecting accused-appellant. P. W. 3 was declared hostile on the request of the ADGC (Criminal) and subjected to a grueling cross-examination by him with the permission of the trial court. ADGC (Criminal) however failed to elicit anything out of him which may even remotely suggest that he had given false evidence before the trial court with the object of protecting accused-appellant. Upon being contradicted with the facts stated by him in his statement recorded under Section 161 Cr.P.C. he on page 38 of the paper book in his cross-examination by the ADGC (Criminal) stoutly denied that the Investigating Officer had recorded any statement of his under Section 161 Cr.P.C. 14. After going through the statements of P. W. 7 S.I. Shashi Kant Pandey, first investigating officer of the case and P. W. 8 Saudagar Rai, second investigating officer of the case very carefully, we find that the ADGC (Criminal) had not invited the attention of either P. W. 7 or P. W. 8 to that part of the cross-examination of P. W. 3 Manoj Shukla in which he had categorically stated on oath that his statement under Section 161 Cr.P.C. was not recorded by the investigating officer. 15. We are now left with the testimony of P. W. 2 Gangesh Tiwari alone. The issue whether a conviction can be based on the testimony of a solitary witness is no longer res integra and stands settled by a catena of decisions of this Court as well as of the Apex Court. A conviction can be recorded on the basis of the evidence of a solitary eye-witness without seeking any corroboration, if he is found to be wholly unreliable. If he is found to be partially reliable, in that case the court would look for corroboration from other evidence on record. 16. Record shows that although, the name of P. W. 2 Gangesh Tiwari finds mention in the written report Ext. Ka1 which was lodged by Shiv Kumar Tripathi P. W. 1. but his presence at the place of the incident, at the time of the occurrence appears to us to be extremely doubtful for the following reasons : (i) Even the most superficial reading of Ext. Ka1, written report of the incident indicates that the name of P. W. 2 Gangesh Tiwari was inserted in the written report Ext. but his presence at the place of the incident, at the time of the occurrence appears to us to be extremely doubtful for the following reasons : (i) Even the most superficial reading of Ext. Ka1, written report of the incident indicates that the name of P. W. 2 Gangesh Tiwari was inserted in the written report Ext. Ka1 after the same had been scribed and signed by P. W. 1, informant Shiv Kumar Tripathi, reason being the size of the alphabets of the words of the last sentence of Ext. Ka1 in which it was stated that P. W. 2 Gangesh Tiwari had also witnessed the occurrence are smaller in size than the size of the alphabets of the other words of Ext. Ka1 which reflects that the last sentence of the Ext. Ka1 was inserted after the written report had been scribed and signed by P. W. 1 Shiv Kumar Tripathi as an afterthought on the advice of the police. The small size of the alphabets of the last sentence indicates an attempt on the part of the scriber of the Ext. Ka1, to somehow adjust the last sentence in which the name of P. W. 2 Gangesh Tiwari was also mentioned as an eye-witness in Ext. Ka1 in the space which was left in Ext. Ka1 after it was scribed and signed by P. W. 1 Shiv Kumar Tripathi and which was not sufficient to accommodate the last sentence in Ext. Ka1 except by reducing the size of the alphabets of the words of the last sentence. (ii) In case, P. W. 2 Gangesh Tiwari had actually witnessed the incident then in the normal course his name as an eye-witness should have found mention in Ext. Ka1 along with the name of the other eye-witness P. W. 3 Manoj Shukla in the Ext. Ka1. (ii) In case, P. W. 2 Gangesh Tiwari had actually witnessed the incident then in the normal course his name as an eye-witness should have found mention in Ext. Ka1 along with the name of the other eye-witness P. W. 3 Manoj Shukla in the Ext. Ka1. (iii) The failure of P. W. 1 Shiv Kumar Tripathi to nominate P. W. 2 Gangesh Tiwari also as an eye-witness of the occurrence along with P. W. 3 Manoj Shukla in his statement recorded under Section 161 Cr.P.C. In this regard, it would be pertinent to refer to the cross-examination of P. W. 7 S.I. Shashi Kant Pandey on page 57 of the paper book in which he has categorically deposed that P. W. 1 Shiv Kumar Tripathi had in his statement recorded during investigation neither named P. W. 2 Gangesh Tiwari as an eye-witness nor stated that P. W. 2 Gangesh Tiwari had seen the occurrence. (iv) P. W. 2 Gangesh Tiwari in his statement recorded under Section 161 Cr.P.C. had not stated that the incident which had taken place on 7.5.2008 in which one Jaswant Singh had slapped P. W. 3 Manoj Shukla 4-5 times and accused-appellant Vivek Tiwari had broadcasted the news of the aforesaid incident in the village was a prequel to the main occurrence which took place on 8.5.2008 while he along with P. W. 3 Manoj Shukla and deceased Sandeep Tiwari was sitting on the eastern bank of the pond of Village Jhuriya at about 5 P.M. when the accused-appellant Vivek Tiwari came on his motorcycle from the side of Harnahi and on noticing them fired two shots from his country made pistol at them but nobody was hurt on which he tried to run away on his motorcycle chased by P. W. 3 Manoj Shukla and deceased Sandeep Tiwari on another motorcycle while he ran on foot to help them in apprehending Vivek Tiwari and as soon as Vivek Tiwari reached in front of the house of Subhash Yadav resident of Village Gahna followed by deceased Sandeep Tiwari. P. W. 3 Manoj Shukla and P. W. 2 Gangesh Tiwari, Vivek Tiwari stopped his motorcycle and got down from it and while standing in front of the house of Subhash Yadav, he pulled out a country made pistol and shot Sandeep Tiwari while he was trying to flee after throwing away his motorcycle on the ground and the shot so fired by the accused-appellant hit him and that at the time when the accused-appellant had shot the deceased he was also present at the place of occurrence and after some time the deceased was taken to hospital by P. W. 2 Gangesh Tiwari. By stating the aforesaid facts for the first time in his statement recorded before the trial court he made material improvements in his evidence to lend credibility to the prosecution case. When the attention of P. W. 2 Gangesh Tiwari was drawn to his statement recorded under Section 161 Cr.P.C. on 9.5.2008 in which he had omitted to state the aforesaid fact he deposed that he was not in a position to give any explanation for the omission on the part of investigating officer to record the aforesaid facts in his statement recorded under Section 161 Cr.P.C. However, when the attention of P. W. 8 Saudagar Rai, the second investigating officer of the case who had recorded the statement of P. W. 2 Gangesh Tiwari under Section 161 Cr.P.C. was invited to the facts deposed by P. W. 2 on pages 26 and 27 of the paper book in his cross-examination, he in his cross-examination on page 61 of the paper book categorically denied that P. W. 2 Gangesh Tiwari had narrated the aforesaid facts to him when his statement under Section 161 Cr.P.C. was recorded by him. (v) The claim of P. W. 2 Gangesh Tiwari that he reached the place of occurrence which was at a distance of about 1.75 km from the place where the accused-appellant had allegedly shot at the deceased for the first time, within the same time in which the deceased and P. W. 3 Manoj Shukla had reached there on their respective motorcycles and he had seen the accused-appellant firing at deceased Sandeep Tiwari is wholly unbelievable and further belies his claim of being an eye-witness of the occurrence. Although he tried to come up with an explanation for reaching at the place of incident at the same time at which deceased, P. W. 3 Manoj Shukla and accused-appellant Vivek Tiwari had reached there by deposing that he had taken a shortcut through the fields to reach the place of occurrence but the said explanation defies common sense and presupposes that P. W. 2 Gangesh Tiwari was aware of the place where the incident was going to take place and he accordingly took the shortcut and reached there at the same time when the accused-appellant Vivek Tiwari, deceased and P. W. 3 Manoj Shukla had reached there on their respective motorcycles which is patently absurd and indicates that P. W. 2 Gangesh Tiwari was a got up witness of the police. 17. The failure of P. W. 2 Gangesh Tiwari to provide his bloodstained clothes to the investigating officer, although he deposed that after the deceased Sandeep Tiwari had been shot, blood oozing out from his wounds had stained his clothes also and he had shown his bloodstained clothes to the investigating officer but he neither seized his bloodstained clothes from him nor prepared any recovery memo. But P. W. 8 Saudagar Rai, the second investigating officer of the case in his cross-examination on page 58 of the paper book, upon being confronted with the facts stated by P. W. 2 Gangesh Tiwari in his cross-examination on page 35 of the paper book deposed that P. W. 2 Gangesh Tiwari had neither told him that blood oozing out from the wounds of deceased had stained his clothes also nor he had shown to him his bloodstained clothes. Thus, it is apparent by deposing the facts stated by him on page 35 of the paper book for the first time before the Court, P. W. 2 Gangesh Tiwari made material improvements in his evidence. 18. Learned counsel for the appellant has not been able to invite our attention to any material on record which may indicate that the FIR in this case is ante-timed. The incident had taken place on 8.5.2008 and the FIR of the incident was lodged on the same day at 17:30 hours. The distance between the place of occurrence and the police station as mentioned in the chek FIR is about 8 km. No question was put to the first informant in this regard. The incident had taken place on 8.5.2008 and the FIR of the incident was lodged on the same day at 17:30 hours. The distance between the place of occurrence and the police station as mentioned in the chek FIR is about 8 km. No question was put to the first informant in this regard. The suggestion given by the defence counsel to P. W. 4 Head Moharrir, Constable Chandra Bhan Singh that the FIR was not registered at the time mentioned in the chek FIR and the G.D. was denied by him. Moreover, from the evidence of P. W. 4, it is proved that the special report was dispatched by him to the mortuary at 8:45 P.M. on the same day. Thus, we do not find that the FIR in this case is ante-timed. 19. Thus, upon a holistic view of the facts of the case and a careful appraisal of the evidence on record, we find that prosecution has not only failed to prove it's case against the accused-appellant by leading any cogent evidence but the prosecution story itself appears to be highly improbable and the version of the incident as spelt out in the FIR does not find corroboration from the evidence of P. W. 2 Gangesh Tiwari who was the lone eye-witness who had supported the prosecution case during the trial. In the FIR of the occurrence which was lodged by P. W. 1 Shiv Kumar Tripathi, it was stated that P. W. 3 Manoj Shukla was beaten up by Jaswant Singh on 7.5.2008 and the aforesaid incident was widely publicized by the accused-appellant Vivek Tiwari in the village and while deceased Sandeep Tiwari, P. W. 2 Gangesh Tiwari and P. W. 3 Manoj Shukla were sitting on the eastern bank of the pond of Village Jhuriya on the next day that i.e. 8.5.2008 at about 5 P.M., the accused-appellant came there on his motorcycle from the side of Harnahi and on seeing P. W. 2 Gangesh Tiwari, P. W. 3 Manoj Shukla and deceased Sandeep Tiwari, he challenged them and fired a shot from his country made pistol which hit Sandeep Tiwari and on account of the firearm wound so sustained by him, he fell on the ground and he died while being taken to the hospital. However, P. W. 2 Gangesh Tiwari in his evidence tendered before the trial court gave an entirely different version of the occurrence which had the effect of even changing the place of occurrence from the eastern bank of the pond of Village Jhuriya to a place in front of the house of Subhash Yadav which was at a distance of about 1.75 km from the pond of Village Jhuriya. 20. The prosecution has totally failed to plead and prove any motive for the accused-appellant to commit the murder of Sandeep Tiwari. No enmity between the accused-appellant and the deceased or his companions, P. W. 3 Manoj Shukla has been suggested. The incident which had taken place on 7.5.2008 in our opinion did not furnish any motive for the accused-appellant to commit the murder of Sandeep Tiwari or Monu @ Manoj Shukla. If anybody could be said to have a grouse emanating from the incident which had taken place on 7.5.2008 and which could have motivated him to retaliate, it was P. W. 3 Manoj Shukla who was slapped by one Jaswant Singh and the aforesaid incident was widely publicized by the accused-appellant Vivek Tiwari in the village. If anybody, at all had any reason to react to the incident which had taken place on 7.5.2008 it was P. W. 3 Manoj Shukla and his target could have been either accused-appellant Vivek Tiwari or Jaswant Singh. We have further failed to understand why the accused-appellant would not have shot Monu @ Manoj Shukla on the eastern bank of the pond of Village Jhuriya itself after having fired a shot at him and the deceased and why he would have tried to run away on his motorcycle after firing the shot which missed the target, although admittedly, neither deceased nor his companions were carrying any arms with them at that time. 21. Thus the whole prosecution story is full of loopholes, discrepancies, concoctions and contradictions. The evidence of P.W.2 Gangesh Tiwari on which the prosecution depends heavily for establishing the charge proved against the accused-appellant, as we have already noted is full of material contradictions, improvements and discrepancies which go to the core of the prosecution story rendering it wholly unreliable. The prosecution in our opinion has miserably failed to prove it's case against the accused-appellant beyond all reasonable doubts. The prosecution in our opinion has miserably failed to prove it's case against the accused-appellant beyond all reasonable doubts. These are the reasons upon which we set aside the impugned judgment and order.