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2025 DIGILAW 952 (PAT)

Madan Tiwari v. State of Bihar

2025-10-15

MOHIT KUMAR SHAH, SONI SHRIVASTAVA

body2025
ORDER Heard Mr. Shailendra Kumar Singh, learned counsel for the appellants, Mrs. Meena Singh, learned counsel for the informant and learned APP for the State, Mr. Ajay Mishra. 2. The present appeal has been preferred against the judgment of conviction dated 25.02.2025 and order of sentence dated 03.03.2025 passed by the learned Court of Additional Sessions Judge-IX, Kaimur at Bhabhua in Sessions Trial No. 2699/2014 (arising out of Durgawati P.S. Case No.30 of 2006), whereby and whereunder the appellants have been convicted under Section 302/34 of the Indian Penal Code (hereinafter in short referred to as ‘the I.P.C.’) and have been sentenced to undergo rigorous imprisonment for life with fine of Rs.50,000/- and in default of payment of fine, they have been directed to further undergo rigorous imprisonment for two months. 3. The case of the prosecution, in brief, as per the fardbeyan of the informant, Aagre Tiwari, recorded on 04.03.2006 at 2:30 A.M., is that in the night of 03.03.2006, while he was sleeping in the palani in front of his house, his nephew Dharmendra Tiwari (deceased) and his full brother, Shiv Sagar Tiwari, were also sleeping on two different cots in front of the house. At about 1:00 A.M. in the night, while the informant was sitting on his cot to chew tobacco, he heard some sound and he and his nephew also woke up. In the meantime a sound of gunshot firing was heard and the bullet hit his nephew, Dharmendra Tiwari, near his cheek due to which he started screaming. It is further alleged that the informant and his brother, Shiv Sagar Tiwari, along with the injured nephew tried to catch hold of the miscreants and in the meantime the female members of the house also woke up on the sound of the gunshot firing and started flashing torch light from the roof. The accused persons, including these appellants were identified in the torch light who were armed with sticks, while Surendra Tiwari was armed with a country made pistol, who had fired at the nephew of the informant. The informant claims that the present incident had taken palce on account of land related dispute which is going on with the accused persons. 4. The informant claims that the present incident had taken palce on account of land related dispute which is going on with the accused persons. 4. The records of this appeal have been placed before this Court to consider the prayer of the appellants for suspension of their sentence and release on bail during the pendency of the appeal. 5. Mr. Shailendra Kumar Singh, learned counsel for the appellants has submitted, at the outset, that out of the nine witnesses examined on behalf the prosecution, PWs- 5 and 6 have been declared hostile as they have not supported the prosecution case, PWs-2, 4 and 7 are not eye-witnesses to the actual incident of firing, but they claim to have seen the accused persons fleeing away in torch light. As far as the evidence of PW-1, Shiv Sagar Tiwari, who is the father of the deceased, is concerned, he has given vivid description of the occurrence which does not seem tenable at all in view of the fact that the time of occurrence was 1:00 A.M., in the dead of the night and the only source of light as alleged by the prosecution is the torch light which was subsequently flashed from the roof and the said torch has also not been seized by the investigating agency, which throws substantial doubt on the very existence of any source of light at the place of occurrence. He further submits that similarly, the eye-witness account given by PW-3, Saheb Tiwari, giving individual details of different accused persons, also lacks credibility in view of the fact that his name does not find mention in the first information report as a witness. 6. Besides arguing that all the witnesses are closely related to the informant and that no independent witness has been examined in this case, the learned counsel for the appellants has also drawn attention of this Court to the fact that there are several investigational lapses making the place of occurrence and the manner of occurrence doubtful, inasmuch as neither any blood has been collected nor any torch has been seized from the place of occurrence. It has also been contended that land dispute between the parties is an admitted fact, leading to false implication of the appellants and even as per the case of the prosecution, the specific allegation of firing is on accused Surendra Tiwari and no overt act has been attributed to these appellants. Further, no repetition of firing, even by the main accused has been alleged by the prosecution and coupled with the fact that the appellants have not indulged in any overt acts, there is nothing on record to show that the appellants shared any common intention with the main accused to kill the deceased. It has also been pointed out that the informant Aagre Tiwari has not been examined as a witness on account of his death, hence the contents of the fardbeyan, do not stand substantially proved and no contradiction can be drawn in absence of examination of the author of the document, thereby causing prejudice to the defence. 7. Per contra, Mr. Ajay Mishra, learned APP for the respondent-State as well as Mrs. Meena Singh, learned counsel appearing on behalf of the informant have vehemently opposed the prayer of the appellants for suspension of sentence and grant of bail. Learned counsel for the informant has contended that there are at least five material witnesses on point of the occurrence, out of whom, PW-1, Shiv Sagar Tiwari is a witness who was sleeping near the deceased while the other witnesses had subsequently witnessed the incident in torch light. These witnesses cannot be discarded merely on the ground of being related witnesses and the medical evidence also corroborates the oral testimony, as firearm injury has been found to be the cause of death. Hence, it is submitted that there is enough evidence on record to warrant upholding the judgment of conviction and order of sentence passed by the learned Trial Court, thus the appellants should not be granted bail. 8. Hence, it is submitted that there is enough evidence on record to warrant upholding the judgment of conviction and order of sentence passed by the learned Trial Court, thus the appellants should not be granted bail. 8. Having heard the learned counsel for the parties and having cursorily perused the evidence on record, we prima facie find that out of the nine witnesses examined by the prosecution, PWs- 5 and 6, who seem to be independent witnesses have not supported the prosecution, hence have been declared hostile, while PWs-2, 4 and 7, who are inmates of the house are admittedly not eye-witnesses to the actual firing and have rather stated that they had seen the accused persons fleeing away in torch light. Thus, PW-1, Shiv Sagar Tiwari and PW-3, Saheb Tiwary are the only witnesses who claim to have seen the occurrence and both these witnesses are full brothers of the informant, Aagre Tiwary. As far as PW-3, Saheb Tiwary is concerned, a bare perusal of the records, especially the FIR, would reveal that the informant makes no mention of his presence at the place of occurrence or even at the roof of the house from where torch was being flashed, hence his evidence giving such detailed description of the incident, prima facie, appears to be not acceptable as his presence itself at the place of occurrence has been doubted. The case of the prosecution thus rests on the evidence of PW-1, Shiv Sagar Tiwary, who is the father of the deceased and who claims to be an eye-witness of the incident but the fact remains that the time of the occurrence has been stated to be 1:00 A.M. in the night and the only source of light, which has been alleged to be a torch which is a material evidence, has also not been seized by the investigating officer thereby negating the existence of any source of identification. Besides, there is no other objective evidence collected by the investigating officer in support of the occurrence. 9. Besides, there is no other objective evidence collected by the investigating officer in support of the occurrence. 9. We also find that there is a departure from the initial version as disclosed in the first information report, inasmuch as the informant has only stated that it was he who was awake from before and he along with his deceased nephew, upon waking up from sleep at some sound, had heard the sound of a gunshot which had hit the deceased near his cheek, whereas PW-1 in his evidence has improved upon the story by stating that he saw all the accused persons and saw the accused Surendra Tiwary, who was armed with country made pistol, firing at his son Dharmendra Tiwary. The non-examination of the informant, Aagre Tiwary as also of the police officer who recorded the said fardbeyan, has caused prejudice to the defence as there was no opportunity to draw contradiction from the FIR. It is also a fact as admitted by PW-1, that the deceased had died four days after the occurrence during course of treatment, however his statement was never recorded. The land dispute with the accused persons is also an admitted fact which could also be a probable reason to falsely implicate the accused persons. The evidence of PW-1 also needs to be scrutinized in view of the fact that his statement before the police was also recorded after four days of the occurrence, i.e. only after the death of the deceased and after having performed the cremation. Hence, his initial statement was also not a promptly recorded statement and rather a belated one. The defence has suffered further prejudice by the fact that the investigating officer, PW-9 has not been able to depose on the statements of the witnesses under Section 161 of the Cr.P.C. by taking a plea that he did not have proper vision in his eye and was unable to read the same. 10. It is true that testimony of related witnesses cannot be simply brushed aside, unless compelling reasons exist, but they have to be viewed with close scrutiny in the background of the attending facts and circumstances. The present appellants are said to have accompanied the main accused Surendra Tiwary to the house of the informant but admittedly, they have not been alleged to be armed with any firearm and no overt act, whatsoever, has been alleged against them. The present appellants are said to have accompanied the main accused Surendra Tiwary to the house of the informant but admittedly, they have not been alleged to be armed with any firearm and no overt act, whatsoever, has been alleged against them. There is no material to show that they had shared any common intention with the main accused Surendra Tiwary to cause death of any person and it is also a relevant consideration that there had been no repetition of firing. Even as per the initial case of the prosecution disclosed in the FIR, the witnesses had woken up at the sound of the gunshot which was found to have hit the deceased, hence it appears to be doubtful that they had witnessed the actual incident of firing. In the background of the aforementioned facts, even accepting the story of the prosecution, the present appellants do not appear to have shared common/similar intention with the main accused Surendra Tiwary, as application of Section 34 of the IPC requires a prearranged plan and presupposes a prior concert or prior meeting of minds, as has been laid down by the Hon’ble Apex Court in the case of Suresh Sakharam Nangare vs. State of Maharastra, reported in (2012) 9 SCC 249 , paragraph no. 21 whereof is being quoted hereunder: – “21. Since the conviction of the appellant is based only with the aid of Section 34 IPC, it is useful to refer the same: “34. Acts done by several persons in furtherance of common intention. – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons are liable for that act in the same manner as if it were done by him alone.” A reading of the above provision makes it clear that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a prearranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds.” 11. The above-mentioned judgment has very recently been referred and relied upon in the case of Vasant @ Girish Akbarasab Sanavale & Anr. vs. The State of Karnataka (Cr. Appeal No.593 of 2022) in paragraphs 87 to 90 thereof. 12. By examining the matter on the touchstone of abovementioned proposition of law, we find that the evidence relating to common intention and participation in action, both seem to be prima facie wanting. 13. Thus, taking a holistic view of the facts and circumstances of the present case as discussed hereinabove, considering the submissions made by the learned counsel for the parties, apart from considering the evidence available on record, especially the doubtful nature of evidence with respect to the identification and presence of the appellants in the dead of the night with narration of minute details, coupled with complete absence of any objective evidence collected by the investigating officer in support thereof, we are prima facie of the view that the conviction of the appellants, who have not been attributed any overt act, may not be sustainable and non-consideration of the aforementioned aspects may lead to the conclusion that there is a palpable error in the impugned judgment. Thus, a case for suspension of sentence and grant of bail during the pendency of the appeals has been made out by the appellants. 14. Accordingly, we direct suspension of order of sentence dated 03.03.2025 qua the appellants herein as also direct to release the appellants on bail, during the pendency of the appeals, on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousands) each with two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge-IX, Kaimur at Bhabhua in connection with Sessions Trial No.2699 of 2014 (arising out of Durgawati P.S. Case No. 30 of 2006). 15. 15. It is clarified that the observation made hereinabove are prima facie and tentative in nature for the purposes of consideration of the prayer of the appellants for suspension of sentence and grant of bail and shall not cause any prejudice to either of the parties at the time of hearing of the main appeal. 16. List this appeal for hearing in its own turn.