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TMI Blog2022 (1) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... dependent witnesses but then there is no reason why the eye witnesses story, which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal. The last aspect urged by learned Counsel for the Appellant was that the IO has referred to the antecedents of the Appellant and other Accused, which has been erroneously taken into account by the High Court contrary to the statutory provisions of Section 53 of the Indian Evidence Act, 1872. The said provision stipulates that the previous bad character is not relevant except in reply, i.e., unless evidence has been given of a good character in which case it becomes relevant - despite best endeavour learned Counsel for the Appellant has not been able to cast any doubt on the impugned judgment of the trial court and the High Court. The story put forth by the prosecution has been established and has not been dented by the Appellant Accused so as to cast a doubt and entitle them to benefit of doubt - Appeal dismissed. - Hon'ble Judges Sanjay Kishan Kaul And M.M. Sundresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 302 and 34 of the Indian Penal Code and Section 27 of the Arms Act and cognizance of the offence was taken on the same date. The case was committed to the court of Sessions Judge on 26.07.2000 where all six Accused persons were charged Under Section 302 read with Section 34 of the Indian Penal Code and Pappu Tiwari was additionally charged Under Section 27 of the Arms Act. 3. In the course of Sessions Trial No. 159/2001, the prosecution examined 22 witnesses and the defence examined two witnesses. In terms of the judgment dated 27.05.2002, all the Accused persons were convicted as charged and in terms of order dated 28.05.2002, they were sentenced to undergo imprisonment for life. Pappu Tiwari was additionally sentenced to undergo rigorous imprisonment for three years Under Section 27 of the Arms Act. 4. The challenge to the judgment of the trial court was laid by two separate appeals. Law Tiwari and Pintu Tiwari jointly filed Criminal Appeal No. 242/2002 while the remaining four convicts filed Criminal Appeal No. 398/2002. The High Court of Jharkhand vide a common judgment dated 07.05.2012 affirmed the judgment of conviction of the trial court against all the six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onviction. 9. As far as Pappu Tiwari is concerned, his bail application was dismissed on 04.10.2021 but with a direction for the appeal itself to be taken up for hearing. Leave was also granted in the said SLP on 23.11.2021. 10. The aforesaid is the background on which these two appeals were listed before us for hearing. Crl.A. Nos. 1202-1203/2014 (Appeal by Law @ Upendra Tiwari): 11. Insofar as Law Tiwari is concerned, a query was posed to the learned Counsel that on the appeal being jointly preferred by him (Law Tiwari) and Ajay Pal and appeal of Ajay Pal having been dismissed, the evidence being common, the role being common, i.e., five people collectively 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 limited scope and this Court also admitted the appeal on his plea of alibi. 13. Learned Counsel drew our attention to the judgment of the trial court as according to him there was hardly any discussion in the appellate court judgment on the particular aspect. The trial court referred to the depositions of the two defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Law Tiwari was named as an Accused in that case too. The occurrence was of 26.01.2000 and the defence is that the leg of Law Tiwari was fractured on 24.01.2000. Law Tiwari was convicted Under Section 365 of the Indian Penal Code vide judgment dated 28.02.2000. We may, however, note that as per learned Counsel for the Appellant in the appeal filed against that conviction, Law Tiwari was acquitted on 17.12.2005. 16. Learned Counsel for the State also submitted that there are three eye witnesses, Pankaj Kumar Singh (PW-6), Subodh Kumar Singh (PW-13) and Chandraman Singh (PW-18) and their testimonies have broadly been consistent, which assign the role to Law Tiwari. The endeavour to apprehend him on 07.03.2000 was not successful as he was found absconding by the IO on six different occasions when his premises were visited. He was only subsequently arrested and taken on remand on 04.04.2000. The contention of learned Counsel for the State was that neither the advise of Dr. M.P. Singh nor the x-ray having been produced, and Dr. M.P. Singh not having been produced as a defence witness or summoned, there was not a piece of paper evidencing the admission and treatment of Law Tiwari in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given our thought to the limited scope of appeal of Law Tiwari and we do not find any merit whatsoever in the same. It has been rightly pointed out by the learned Counsel for the State that the burden was on Law Tiwari to establish the plea of alibi (Vijay Pal supra and Jitender Kumar supra), which he failed to discharge. It was not a case where opportunity was not granted to him. In fact, two witnesses were produced 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 witness would have been Dr. M.P. Singh, who was not produced as a defence witness nor summoned. 19. We may note that there is some identity confusion in the judgment 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 be given by Dr. M.P. Singh was also not proved nor was the x-ray plate produced. DW-2 stated that he took Law Tiwari to Garhwa Hospital but no papers of admission or treatment at the hospital were produced in support of the treatment of a fractured leg in the hospital. Thus, on all these aspects Law Tiwari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained his presence and stated that he could identify the Accused, who were well-known in the area, even though in a negative sense. We may note, however, insofar as the third eye witness, PW-18, is concerned, the High Court has not relied upon his testimony on account of delay of more than two months in examination of this witness who claimed to be an eye witness and was the maternal uncle of the deceased. 25. Learned Counsel vehemently sought to contend that the FIR was ante timed and that itself would throw a doubt on the story. The FIR was recorded on 07.03.2000 in the early afternoon but reached the court on the next date on 08.03.2000 even when the distance between the court and the police station was hardly a kilometre. 26. On the other hand learned Counsel for the State pointed out that the incident occurred at 1300 hours on 07.03.2000, at 1343 hours the telephone call from the hospital reported that the injured had come to the 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 registered at 1425 hours. The body was received for post-mortem at 1445 hours and simultaneously the IO reached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of gunshot injury while the post-mortem report shows that there are 26 injuries including the gunshot injury. The pistol was not recovered from him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both the fardbeyan as well as the inquest report was not examined by the prosecution. On this aspect learned Counsel relied upon the observations in Maula Bux and Ors. v. State of Rajasthan (1983) 1 SCC 379 . 30. On the other hand learned Counsel for the State sought to submit that inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest (Suresh Roy v. State of Bihar (2000) 4 SCC 84) . He submitted that the inquest report is not really an evidence by itself and cannot be pitted against the evidence of the medical witness in court (Surjan and Ors. v. State of Rajasthan AIR 1956 SC 425) . Learned Counsel drew our attention to the observations in Pedda Narayana and Ors. v. State of Andhra Pradesh (1975) 4 SCC 153 opining that the object of proceedings Under Section 174 Code of Criminal Procedure is merely to ascertain that whether the person has died under suspicious circumstances or an unnatural death a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n being asked about the distance from which the fire arm was used, he did not express any opinion. Learned Counsel also points out that the case of prosecution is that after the fire arm injury by Pappu Tiwari, the deceased fell down and the other Accused persons assaulted him with knives. No explanation is forthcoming on the backside of the deceased. As per the story of the prosecution, the witness was going towards the gym at around 1:00 p.m. but the post-mortem report reveals that the stomach was empty and the rectum and the bladder full which would show that the 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 to the 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 injuries were caused by bullet or pellet and the distance from which the fire arm was used, it was submitted that where the weapon and ammunition is of uncertain make and quality, the normal pellet pattern based on standard weapon and ammunition cannot be applied with accuracy (Prahlad Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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