Dismissed

Baijnath Tiwari and Others v. State of U.P.

Allahabad HC23 Dec 2021CRLA/827/2006

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal filed by Baijnath Tiwari and others against the trial court's judgment convicting them under Sections 323/34 IPC and granting probation after a dispute over land and tree cutting, finding no perversity in the trial court's judgment.

What did the court decide?

The criminal appeal was dismissed with no substantial change to the conviction and sentence granted by the trial court.

Baijnath Tiwari and Others Vs State of U.P. — Cheque Dishonour | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No.3

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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Criminal Appeal No. 827 of 2006

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Baijnath Tiwari and others

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...Appellants

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Through: Sri Sharad Nandan Ojha, Advocate

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vs.

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State of U.P. ...Respondent Through: Smt. Smiti Sahay, Additional Government Advocate

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CORAM: HON’BLE RAJESH BINDAL, CHIEF JUSTICE HON’BLE NARENDRA KUMAR JOHARI, JUDGE

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ORDER

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NARENDRA KUMAR JOHARI, J.

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The present appeal has been filed by appellant Baijnath Tiwari and others under Section 374(2) of Cr.P.C. against the judgement and order dated 17.4.2006 passed by Additional District and Sessions Judge/F.T.C. VI, Pratapgarh in Sessions Trial No. 450 of 1999 (State Vs. Baijnath Tiwari and others) by which the learned trial court has acquitted the accused persons Baijnath Tiwari, Paras Nath Tiwari and Shiv Palat from the charges of offence under Section 427 of IPC but convicted them under Sections 323/34 IPC and given them the benefit of Section 4

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of The Probation of Offenders Act, 1958 which has been assailed by the accused-appellants in the present appeal.

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The brief facts of the case are that informant Ram Sundar Tiwari lodged an FIR on 28.10.1996 at 17:35 hours with contention that accused persons Baijnath Tiwari, Vishwanath, Paras Nath Tiwari and Shiv Palat let their buffaloes enter the field of informant Ram Sundar Tiwari. In furtherance of their common intention, they entered into the field of informant with weapons wood stick (lathi, danda), axe, ‘gandasa and ballam and they removed five trees of ‘Anwla’ and cut one tree of

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‘Chilbil’ which caused financial loss of Rs. 500/-. When informant opposed the activities of accused persons, the accused persons Baijnath Tiwari and Vishwanath abused him and exhorted by giving threat of life. The accused persons Baijnath Tiwari and Paras Nath Tiwari attacked informant by wooden stick (lathi & danda) and also slapped him which caused the injury to informant. On hurling the voice for help, the son of informant, Harishankar Pandey and other villagers reached on the spot and saw the occurrence thereafter accused persons fled away by extending threat of life.

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FIR against accused persons for the above occurrence was lodged in police station concerned vide Crime No. 313 of 1996 under Sections 323, 504, 506 and 427 IPC. The investigation of offence was conducted by SI Ramji Yadav, who visited the spot, recorded the statements of witnesses under Section 161 Cr.P.C. and after completing the investigation submitted charge sheet against accused persons under Sections 323, 504, 506 and 427 IPC. Since the cross case S.T. No. 451 of 1999 was pending in the court of Sessions, therefore, the record of the case was also transmitted to the Sessions Court for trial along with cross case.

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The trial court framed charges against accused persons under Sections 323/34 and 427 IPC who denied the charges, pleaded not guilty and claimed trial.

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In the trial, on behalf of prosecution, statements of Ram Sundar Tiwari (Informant) as PW-1, Harishankar @ Nanhey Pandey as PW-2, S.I. (II) Man Singh Yadav as PW-3, Dr. Shiv Shankar Gupta as PW-4, Constable Nagendra Bahadur Singh as PW-5 were recorded as prosecution witnesses. Apart from that, some documentary evidence Ex. Ka-1 to Ka-6 was also produced by the prosecution.

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After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. in which they denied their involvement in commission of offence and submitted that the witnesses had given false evidence against them. It has also been stated by accused that the persons of informant Ram Sunder Tiwari and others had beaten the accused Baijnath Tiwari for which a criminal case had been lodged by Baijnath Tiwari vide Crime No. 313A of 1996 and just to save their skin from the above criminal case, the present FIR was lodged by Ram Sunder Tiwari (informant) with false and malafide allegations. In defence, the accused persons also produced evidence. It is to be noted that during the pendency of the trial, accused Vishwanath had died, hence the trial stood abated against him.

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It has been argued by learned counsel for appellants that the prosecution had failed to prove its case against accused appellants but learned trial court has not considered the same. The evidence of prosecution was full of contradictions and witnesses were not trustworthy. The appellant Baijnath Tiwari himself had received injury in the occurrence. Learned trial court erred in assessing the evidence on record. Hence, the impugned judgment is liable to be set aside and appeal deserves to be allowed.

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Heard learned counsel for the appellants, learned AGA for the State and perused the record.

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In trial court, the PW-1 had narrated almost the same story in his examination-in-chief as is mentioned in FIR. The witness PW-1 further explaining the role of accused persons stated that accused Shiv Palat had given him lathi blow and accused Baijnath Tiwari had beaten

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him by fists and whomp which caused injury on him badly and when witness PW-1 fell down after receiving above injuries, accused persons again beat him with feet and fists. On his hurling the voice for help, his son Rajendra and Harishankar @ Nanhe Pandey and villagers reached on spot and saw the occurrence. Witness PW-1 has further stated that he had purchased some land by way of sale deed from Kamla Devi and the accused persons also had purchased some part of land from same vendor Kamla Devi and there was a dispute regarding demarcation of the land between the parties. PW-1 has further stated in his evidence that the piece of land where the incident took place was belonging to him. In the proceeding for demarcation, the land in dispute has been found under the ownership of informant, against which an appeal was filed by the accused persons which was rejected. Thereafter, accused persons Vishwanath and others filed a writ petition in High Court which is pending. It has also been stated that the accused persons had also filed a Civil Suit against informant and others, which is also pending.

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The witness PW-1 had further stated in his evidence that accused persons were carrying wooden stick (lathi), axe, gandasa and ballam in their hands and were destroying the plants of informant. When informant opposed, the accused persons surrounded him and started beating him by their weapons. He hurled his voice for help after receiving the injuries. After that, his son and other persons reached on the spot. He became unconscious on spot due to injury received by him and regained his consciousness while was going to hospital. He was admitted in hospital for one day. He further stated that he had not beaten any of the accused persons. The witness PW-2 Harishankar @ Nanhe Pandey in his examination-in-chief has substantially corroborated the statements of PW-1. PW-4 Dr. Shiv Shankar Gupta has also corroborated the statement of witness PW-1 regarding the injury received by him. According to evidence of witness PW-4 Dr. Shiv Shankar Gupta, the informant was medically examined in the District Hospital, Pratapgarh

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at about 1:50 P.M. on 28.10.1996. The following injuries were found on his body at the time of examination:

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“(i) injury of contusion 3 X 2 CM on back of left wrist joint. Red.

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(ii) contusion 5 X 1 CM on outer side of lower pad of right leg 4 CM above ankle joint.

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(iii) complaint of pain on left leg.”

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He further stated that all the injuries were caused by hard and blunt object and were simple in nature. Duration was fresh. In his oral statement, the witness PW-4 had further stated that these injuries were probable by blow of wooden stick (lathi & danda). The witness was cross-examined by counsel for accused persons but nothing otherwise could reveal.

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In the case, two prosecution witnesses PW-1 and PW-2 were the witnesses of fact whereas, amongst the formal witnesses, witness PW-3 Man Singh Yadav was investigating officer, who had investigated the case after part investigation done by SI Ramji Yadav, witness PW-4 was Doctor, who had carried medico-legal examination of injured. Witness PW-5 is CP 305 Nagendra Bahadur Singh, who deposed that he made entry of Crime No. 313/96 in General Diary on 28.10.1996. All the prosecution witnesses had been cross-examined by counsel for accused at length but no substantial contradiction came to light which could be fatal for prosecution version.

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It reveals from record that the cross case being Case Crime No. 451 of 1999 (State Vs. Suresh Pratap and others) under Sections 307/34 and 325 IPC was also decided by the trial court along with present Case Crime No. 450 of 1999. In the present case, as documentary evidence vide list 64-Ka along with other papers, the accused persons had submitted the certified copy of the NCR lodged by Baijnath Tiwari against Suresh Pratap and others. The aforesaid NCR No. 260/1996 was lodged on 28.10.1996 at 9:15 AM vide NCR No.

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260/1996 under Sections 323/325 IPC with contention that when the informant (Baijnath Tiwari) was returning to his residence, after defecation, on the way he had seen that accused persons Suresh Pratap, Rajendra Pratap and Ram Sunder Tiwari were planting the ‘Aamla’ plants in his grove by digging pits, when he opposed, the accused persons abused him and beat him by wooden stick (lathi & danda), feet and axe. The certified copy of medico-legal examination of Baijnath Tiwari is showing two injuries on his body, one of lacerated wound on left side of head and another of abrasion, on the left side of chest. A copy of supplementary medical report had also been filed by accused persons which shows that Baijnath Tiwari had received a fracture on left side of frontal bone on his skull also. Since the accused Baijnath Tiwari had received injuries in the same occurrence, therefore, his presence on spot is certified. It is proved that persons of both the sides had received injuries in the occurrence of quarrel (marpeet).

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The trial court has concluded that accused persons were aggressor in the occurrence. The inference of trial court gets strength by the documentary evidence available on record. In the record, Paper No. 61 Ka-1 was the application for proceeding under Section 41 of Land Revenue Act for demarcation which was filed by Ram Sunder (informant) in the court of S.D.O. Sadar, District Pratapgarh against Vishwanath, Baijnath Tiwari and others. Paper No. 55-Ka is the order of the High Court passed in Writ Petition No. 1021 of 2001 (MS) (Vishwanath, Baijnath Tiwari and others Vs. Additional Commissioner, Ram Sundar Tiwari and others). The said writ petition was filed by the accused persons against the order of Commissioner. The above papers corroborate the statement of witness PW-1, who had stated in his evidence that he had filed the proceeding for demarcation in the competent court in which the order was passed in his favour, which was challenged by accused persons by way of appeal before Commissioner which was also rejected and thereafter a writ petition was filed on behalf of accused persons in the High Court assailing the order of

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Commissioner. The above part of the statement shows that the disputed land falls in the ownership and possession of informant and informant was planting trees in his own land which was interfered by accused persons, resulting the occurrence.

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The trial court has properly discussed the evidence on record and concluded that the accused persons were aggressor in the occurrence. The finding of the trial court is based upon proper reasoning. 15. Learned Trial Court, by considering the nature and gravity of offence, good behaviour/character and antecedent of accused persons, after convicting them under Sections 323/34, has not sentenced them for any term of imprisonment rather granted them the benefit of probation under Section 4 of The Probation of Offenders Act, 1958. The decision of learned trial court is not illegal or perverse. It is also to be kept in mind that the accused persons have been convicted for the offence defined under Sections 323/34 of IPC and the occurrence took place in the year 1996. Approximately 25 years have gone by.

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Having considered the arguments advanced by learned counsel for the parties, facts and circumstances of the case and after thorough analysis of evidence on record, we are of the considered view that no perversity is found in the impugned judgment. The appeal being bereft of merit is hereby dismissed.

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The record of the trial court be sent back to the court concerned with copy of this judgment.

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(Narendra Kumar Johari, J.) (Rajesh Bindal, C.J.)

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Lucknow December 23, 2021 Amit/AHA

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Whether the order is speaking:Yes/No Whether the order is reportable:Yes/No

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Digitally signed by AMIT KUMAR Date: 2022.03.15 16:07:23 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Baijnath Tiwari and Others v. State of U.P.

Case brief

What is this about?

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Baijnath Tiwari and Others v. State of U.P.

Case brief

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What did the court decide?

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