Puran Tiwary Vs State of Bihar

Neutral Citation No. ( 2025:JHHC:10807-DB )

Criminal Appeal (DB) No. 135 of 1995(R)

( Against the judgment and order of conviction and sentence dated 21.09.1995 (sentence passed on 22.09.1995) passed by Sri Gopal Prasad, learned 6^th Additional Sessions Judge, Palamau, Daltonganj in S.T. No. 104/1990.)

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Puran Tiwary , S/o Sri Giriwar Tiwari, R/o Vill- Peska, P.S.- Meral, Dist.- Garhwa.

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... Appellant

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Versus

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The State of Bihar (now Jharkhand) … Respondent ----

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PRESENT

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HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI

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---For the Appellant : Mr. A.K. Kashyap, Sr. Adv. For the Respondent : Mrs. Vandana Bharti, A.P.P.

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CAV on : 25/02/2025 Pronounced on : 08/04/2025 Per Rongon Mukhopadhyay, J. :

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1. Heard Mr. A. K. Kashyap, learned senior counsel for the appellant and Mrs. Vandana Bharti, learned APP.

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2. This appeal is directed against the judgment and order of conviction and sentence, dated 21.09.1995 (sentence passed on 22.09.1995) passed by Sri Gopal Prasad, learned 6^th Additional Sessions Judge, Palamu at Daltonganj, in S.T. No. 104/1990 whereby and whereunder, the appellant has been convicted for the offences punishable under Section 302 IPC and Section 27 Arms Act and has been sentenced to imprisonment for life for the offence under Section 302 IPC and one year rigorous imprisonment for the offence under Section 27 Arms Act. Both the sentences were directed to run concurrently.

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3. The prosecution case arises out of the fardbeyan of Shiv Lochan Sao recorded on 17.06.1989, in which it has been stated that around 12:00 noon, Anil Sao had gone to the Post Office and

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Sanjay Sao had gone to the Public Distribution Shop to bring wheat. It has been alleged that Puran Tiwary (appellant) had told them as to why they disturb them when they go to the market at which, none of the two persons gave any response. It has been stated that at 6:00PM Ranjit Sao returned back to his house from Meral and took Puran Tiwary towards his house to ask him about his conduct. After some time, an information was received that Puran Tiwary along with his men has surrounded Ranjit Sao in order to commit his murder. At this information, the informant, his son Binod Kumar and several villagers proceeded towards the said place. At around 6:30PM, when they reached in front of the house of Sita Sao, they saw Puran Tiwary, Alok Dubey, Girija Tiwari, Ramadhar Dubey, Raja Dubey, Laxmi Dubey, Manoj Dubey, Dhebar Dubey, Chandradhar Dubey and Brijdhar Dubey coming and Puran Tiwary and Alok Dubey were armed with pistols. Lakshmi Dubey was armed with gadasa and the others were armed with lathis. The accused persons started committing assault at which, the informant and his son suffered injuries. In the meantime, Puran Tiwary fired a shot which hit the abdomen of the son of the informant Sarjug Sao which resulted in Sarjug Sao falling on the ground. The son of the informant was being taken on a cot to Garhwa Hospital and on the way he died.

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Based on the aforesaid allegations, Meral P.S. Case No. 32/89 was instituted. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as S.T. No. 104/1990. Charge was framed against the accused under Section 148 and 302 IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as ten witnesses in support of its case:

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P.W.1 Ram Kishor Mukti has proved the formal FIR which has been marked as Exhibit-1.

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P.W.2 Bajrang Bali Prasad has stated that on 17.06.1989 at 6:00-6.30PM, he was going to Badhesar along with his brother Manoj and as they reached near the door of Sarjan Mia, they saw Ramadhar Dubey and Puran Tiwary coming and as soon as Ramadhar Dubey issued a threat, he and his brother fled away towards their house. On their raising a cry of alarm, Sarjug Sao and Binod came to the said place. At the same time, Alok Dubey, Raja Dubey, Lakshmi Dubey, Dhebar Dubey and Manoj Dubey came and started assaulting Sarjug Sao with lathi. When Sarjug did not fall down despite such assault, Ramadhar instigated Puran Tiwary to fire at Sarjug Sao at which, Puran Tiwary immediately shot at him. Sarjug Sao fell down due to the firearm injury. He thereafter, fled away from the place of occurrence.

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In cross-examination, he has deposed that he had told the Police about Ramadhar Dubey ordering Puran Tiwary to fire. He and his brother Manoj were surrounded by the accused persons and assaulted with lathis. Sanjay and Binod had come to save them. Sarjug also had a lathi with him. Only one firing was made by Puran Tiwary from a distance of 4-6 degs.

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P.W.3 Ram Lakhan Prasad has stated that he had come to Hulhuliya village and on hearing a commotion, he went to the said place where he saw Sarjug Sao being assaulted with lathi and danda by Lakshmi Dubey, Alok Dubey, Raja Dubey and Dhebar Dubey. In the meantime, at the instigation of Ramadhar Dubey, Puran Tiwary had fired at Sarjug Sao, who fell down. The accused persons had fled away. Sarjug Sao was being taken to Garhwa Hospital and on the way, he died. He did not have any enmity with the accused persons.

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In cross-examination, he has deposed that when he came to the place of occurrence, he had seen the two accused and Sarjug Sao and none else. He had seen about 10-20 lathi blows raining upon Sarjug Sao. After the firing was made, he had left for his house. At the time of firing, Puran and Sarjug were standing at a

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distance of 3-4 degs. Only he had raised a cry of alarm, while the others did not.

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P.W.4 Manoj Kumar has stated that on 17.06.1989 at 6:006:15PM, he was going with Bajrangi to Badesar Bhandar and as they reached near the shop of Sarjan Mia, they saw Puran Tiwary and Ramadhar Dubey coming from the western side. Ramadhar Dubey asked Puran Tiwary to fire after giving some expletives at which, he fled away towards the east. When he raised a cry of alarm, Sarjug Sao and Binod Sao arrived and they were surrounded and assaulted with lathis by Chandradhar Dubey, Giridhar Dubey, Dhebar Dubey, Raja Dubey, Alok Dubey and Lakshmi Narayan Dubey. The assault by Dhebar Dubey led to Binod suffering an injury on his finger. Sarjug was trying to fend off the assault on him with a lathi which was in his possession. Ramadhar Dubey asked Puran Tiwary to shoot at Sarjug Sao and consequently, Puran Tiwary resorted to firing and Sarjug Sao fell down on the ground. Sarjug Sao was being taken to Garhwa and on the way, he breathed his last. He cannot say the reason for the incident.

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In cross-examination, he has deposed that he was standing at a distance of 20 degs, from the place where Sarjug Sao was being assaulted. He has deposed that Shiv Lochan on being assaulted with lathi, had entered into the house of Ram Jee Sao and after a minute the firing was made. He had not stated before the Police that when the assault was in progress, there was a commotion. Sarjug Sao and Binod had arrived and Puran Tiwary had shot at Sarjug Sao. He cannot say as to what weapons were in the hand of each of the assailants. There was only one firing done. He had seen a pistol in the hand of Puran Tiwary. Lakshmi Dubey had struck Sarjug Sao with a Gadasa 2-3 times. Sarjug Sao did not have any enmity with the accused persons. He has further deposed that Puran Tiwary was the agent of a bus.

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P.W.5 Shiv Lochan Sao is the father of the deceased who has stated that the incident is of two years back and he was in his house

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and on hearing a commotion that Mukhiya Ram Jee Sao is being assaulted, he rushed out of his house and when he reached the house of Sheel Sao, he had seen Ramadhar Dubey, Lakshmi Dubey, Alok Dubey, Girdhar Dubey, Puran Tiwary, Chakradhar Dubey, Brijdhar Dubey, Dhebar Dubey and Manoj Dubey. Puran Tiwary and Alok Dubey had pistols in their hand, Lakshmi had a Gadasa, while the others were in possession of lathis. Apart from these persons, there were 25-30 persons present as well. Sarjug and Binod were being assaulted with lathis. Ramadhar Dubey was instigating to commit the murder of these two persons. Puran had fired and the bullet struck Sarjug Sao, who fell down and he died while being taken to the hospital. He has proved his signature in the fardbeyan which has been marked as Exhibit-2. He and Binod had also suffered lathi blows. The incident had occurred on account of a quarrel which had taken place with respect to the fare of a bus.

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In cross-examination, he has deposed that on getting the news that Mukhiya is being assaulted, about 10-20 persons had rushed to the place of occurrence to save him. Sarjug was fending off the lathi blows. When the firing was made, he was present at the spot. The firing by Puran was activated by Ramadhar Dubey. He had not seen any injuries on the person of Sarjug Sao inflicted with lathis. There was a gap of 2-4 minutes when he had reached the place of occurrence and the accused persons having fled away. When the lathi blows were being rained upon Sarjug Sao, he was standing adjacent to Sarjug Sao and he had suffered a single lathi blow upon his body. The person who had shot at Sarjug Sao was standing at a distance of 5-7 degs. He did not have any enmity with the villagers.

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P.W.6 Basudev Prasad has proved the carbon copy of the inquest report which has been marked as Exhibit-3. He has proved his signature and the signature of the Mukhiya in the inquest report which has been marked as Exhibit-4.

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P.W.7 Binod Prasad is the younger brother of the deceased

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Sarjug Sao who has stated that Bajrangi and Manoj were going to the Bhandar when there was an alarm that they were being assaulted. He and Sarjug Sao reached the spot and as they neared the house of Sita Sao, the accused persons Dhebar Dubey, Alok Dubey, Brijdhar Dubey, Chakradhar Dubey, Girdhar Tiwari, Lakshmi Dubey and Ramadhar Dubey started assaulting them with lathis. He managed to get away from the said place. Ramadhar Dubey asked Puran Tiwary to fire at which, Puran Tiwary shot at Sanjay Sao who fell down injured. His father was also standing nearby and he was also being assaulted.

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In cross-examination, he has deposed that when he came out of the house, he had seen Manoj and Bajrang being assaulted with lathis. When the firing was made, he was standing behind Sarjug Sao at a distance of 5 feet. His father was standing at a distance of 5-10 degs from him. When the firing was done, his father had entered inside the room. The assault had taken place for about five minutes. All the accused had surrounded Sarjug. Nobody had come from the village on hearing the commotion. He and the others had also wielded lathis, but nobody got injured.

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P.W.8 Ram Jee Sao has stated that he was standing beneath a banyan tree in front of the house of Girdhar Tiwari. He had told Girdhar Tiwari that Anil Sao and Sanjay Sao were going to post a letter in the Post Office, but Puran Tiwary and Dhebar Dubey had prevented them from going. He had asked Girdhar Tiwari to reprimand his son Puran Tiwary and advised him that no misunderstanding should take place due to the acts of the children. Thereafter, three persons remained with him while the rest went towards the east. After about 15 minutes, he had heard the sound of firing and when he went towards the source of firing, he found Sarjug Sao lying on the ground in an injured state. While being taken to Garhwa Hospital, Sarjug Sao died on the way. He has proved his signature in the fardbeyan which has been marked as Exhibit-2. He has proved the requisition of the dead body which

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has been marked as Exhibit-4.

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In cross-examination, he has deposed that the persons who were standing with him beneath the banyan tree were Chakradhar Dubey, Manoj Dubey and Brajdhar Dubey.

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P.W.9 Dr. Baleshwar Chaudhari was posted as a Deputy Superintendent in Sadar Hospital and on 18.06.1989, he had conducted autopsy on the dead body of Sarjug Sao and had found the following:

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(i) Abrasion 1” x 1/6” over the back of the left forearm which was caused by hard blunt substance.

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(ii) Oval lacerated wound with inverted margins ¾” x ½” over the right iliac cosa. Skin around the wound was blackish. This injury was caused by fire arm.

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(iii) There were 17 blackish spots over the right lateral region of the chest of size of ¼” x ¼”.

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(iv) Abdominal cavity contains blood and blood clots.

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The cause of death was opined to be due to shock and hemorrhage causing extensive injuries to vital organs by firearms. He has proved the post-mortem report which has been marked as Exhibit-5.

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P.W.10 Bisheshwar Kumar has proved pages 1-65 of the case diary which has been marked as Exhibit-6. The pages 66-83 of the case diary have been proved and marked as Exhibit-6/2. He has also proved para 84-87 of the case diary and para 1-3 of the supplementary case diary which have been marked as Exhibit-6/2 to 6/ 3 respectively.

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5. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in committing the

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murder of Sarjug Sao.

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6. Mr. A. K. Kashyap, learned senior counsel for the appellant has submitted that there are major contradictions in the evidence of the prosecution witnesses. The informant has developed his case during trial as there is a marked difference in his fardbeyan and in his testimony as P.W.5. The other accused persons have been acquitted on the same set of evidence and therefore, the benefit of doubt should also be extended to the appellant. No blood was seized from the place of occurrence and the non-examination of the Investigating Officer has prejudiced the case of the defence. Mr. Kashyap, by way of an alternative argument, has submitted that at best it can be a case under Section 304 Part II IPC as there was no pre-meditation and the incident occurred at the spur of the moment due to a quarrel. He has submitted that the appellant has spent more than 9 years in custody.

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7. Mrs. Vandana Bharti, learned APP has submitted that there is a specific allegation against the appellant of firing at the deceased. She has referred to the evidence of P.W.5 and P.W.7 who are the eyewitnesses and were also injured in the indiscriminate assault committed at which Mr. Kashyap has submitted that there is no injury report on record which dilutes the assertion of P.W.5 and P.W.7 being the eyewitnesses.

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8. We have heard the learned counsel for the respective parties and have also perused the trial court records. 9. The precursor to the ultimate incident of murder as disclosed in the fardbeyan, and as elaborated by P.W.8 seems to be the appellant and Dhebar Dubey preventing Anil Sao and Sanjay Sao to go to the Post Office. Although a note of caution was sounded by P.W.8 that the dispute between the children should not escalate and bring within its fold the elders, but it is apparent that the said incident galvanized the accused persons who were variously armed with pistol, gadasa and lathis to settle the issue of supremacy as there seems to be some caste factors also in play which could be

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deciphered from the expletives used by Ramadhar Dubey while goading the appellant to fire. The evidence of P.W.2, P.W.3, P.W.4, P.W.5 and P.W.7 clearly reveal that it was the appellant who had fired at Sarjug Sao resulting in his death. Though, the learned trial court has acquitted the other accused persons, the same seems to be on account of major contradictions and omissions on the part of the prosecution witnesses but on a careful perusal of the evidence of the eyewitnesses, the common thread which runs across their evidence is of the appellant firing at the deceased. The submission of Mr. Kashyap, learned senior counsel for the appellant that the appellant should be similarly treated to the rest accused persons who have been acquitted on the same set of evidence is, therefore, negated by us. Moreover, the allegation against the appellant finds support from the post-mortem report which reveals the cause of death on account of firearm injury.

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10. So far as the second limb of argument of Mr. Kashyap, learned senior counsel with respect to the fact that an offence under Section 304 Part II IPC is made out is concerned, we reject such submission primarily on account of the fact that the initial incident of preventing Anil Sao and Sanjay Sao to visit the Post Office was by the appellant also and his premeditation in committing the murder springs from the fact that he was armed with a pistol and not with other conventional weapons of assault like lathi. Absence of repetition of shots would hardly be of any consequence since only one shot was enough to cause death to Sarjug Sao. The keeping of a dangerous weapon like a firearm and viewed in the background of the assault would clearly signify that the appellant had a predisposition to his ultimate act of firing and was equipped with the intention of committing the murder. The prosecution has, therefore, been able to prove its case beyond all reasonable doubt so far as the appellant is concerned.

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11. We, therefore, on the basis of the discussions made hereinabove, do not find any merit in this appeal which accordingly

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stands dismissed .

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12. Since the appellant is on bail, he is directed to surrender immediately and forthwith to serve out the remaining part of his sentence.

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13. Pending I.A.s, if any, stands closed.