Allowed

Surendra Tiwary v. State of Bihar

Patna HC10 Apr 2015CR. APP (DB)/244/1993

Case brief

AI extract

What is this about?

The High Court of Patna allowed the criminal appeals of appellants convicted of murder. The bench acquitted all three accused by benefit of doubt, holding that prosecution witness evidence contained contradictions and contradictions with the first information report, rendering it unsafe to sustain the conviction.

What did the court decide?

Appeals allowed; convictions and sentences set aside; all three appellants acquitted under benefit of doubt; bail bonds cancelled; sureties discharged; records sent back.

Surendra Tiwary Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2015)

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Patna High Court CR. APP (DB) No.244 of 1993 dt.10-04-2015

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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(Against the judgment of conviction dated 8.4.1993 and order of sentence, dated 12.04.1993, passed by Shri Sardar Bhagat Singh, Additional District & Sessions Judge-II, Buxar in Sessions Trial No. 222 of 1984, arising out of Nawanagar P.S. case No. 82 of 1982, G.R. No. 805 of 1982)

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Criminal Appeal (DB) No.244 of 1993

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=========================================================== Surendra Tiwary, son of Brahma Tiwary, resident of Village- Baijnathpur, Police Station- Nawanagar, District- (Bhojpur) Buxar.

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The State of Bihar

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.... .... Appellant . Versus .... .... Respondent.

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with

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=========================================================== Criminal Appeal (DB) No. 292 of 1993

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=========================================================== 1. Shri Hari Tiwary, son of Ramji Tiwary

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Rajendra Tiwary, Son of Shri Hari Tiwary Both residents of Village- Baijnathpur, Police Station- Nawanagar, DistrictBuxar

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.... .... Appellants. Versus The State of Bihar .... .... Respondent. =========================================================== Appearance : (In both the appeals)

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For the Appellants : Mr. Ajay Kumar Thakur, Advocate

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Mr. Rakesh Kumar Sinha, Advocate For the Respondent/s : Mr. Mayanand Jha, A.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI

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and

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HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) Date: 10-04-2015

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Under challenge is the judgment of conviction, dated 08.04.1993, and order of sentence, dated 12.04.1993, passed by the learned Additional Sessions Judge-II, Buxar, in Sessions Trial No. 222 of 1984, arising out of Nawanagar P.S. case No. 82 of 1982, G.R. No. 805 of 1982), whereby the

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Patna High Court CR. APP (DB) No.244 of 1993 dt.10-04-2015

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appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and pay fine of Rs.2,000/- each, and, in default, to undergo simple imprisonment for a period of six months each.

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2. The prosecution’s case, as made out in the fardbayan, dated 07.08.1982, of Munako Devi, wife of Ram Lakhan Tiwary, a resident of Baijnathpur, P.S.- Nagar, DistrictBhojpur is, in short, as follows:

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(i) The informant (P.W.6), Munako Devi, along with her son, Rajpati Tiwary, and daughter-in-law, Savitri Devi (P.W.3), was sleeping on the roof of her house after having taken their meals in the night of 06.08.1982, the roof being open from all four sides. Her son slept in the Marai (i.e., a temporary shed) , whereas she slept on the east of Marai and her daughter-in-law slept on the west of Marai . On the northeast side of the roof, some pieces of wood, iron and old tiles were stored. Her grand daughter, Usha Kumari, and her two grandsons were sleeping in the house down stairs. The night was moonlit. At about mid-night, she woke up on account of some rattling sound coming from the northern side of the roof, where the wood and tiles were kept.

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(ii) While the informant, Munako Devi (PW 6) was sleeping, four persons had climbed on the roof with aid of

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Patna High Court CR. APP (DB) No.244 of 1993 dt.10-04-2015

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wooden ladder and entered into the Marai . They were all covillagers, Rajendra Tiwary, aged about 30 years, and Surendra Tiwary, aged about 28 years, were armed with swords, whereas Hari Tiwary, aged about 45 years, and Brijmohan Tiwary, aged about 25 years, were armed small sword. Accused Brahma Tiwary, aged about 55 years, armed with small sword, was standing in the lane maintaining a vigil. Accused Rajendra Tiwary attacked Rajpati Tiwary by means of a sword, whereas accused Surendra Tiwary attacked Rajpati Tiwary by means of sword causing injuries on Rajpati Tiwary. The informant raised hulla that her son was being killed; her daughter-in-law, Savitri Devi (P.W. 3), too, cried out. Her son, Rajpati Tiwary, somehow, managed to escape from the clutches of the accused and raised both his hands in a mode of surrender. Just then, accused Rajendra Tiwary struck on his right hand by sword and as a result thereof, Rajpati Tiwary’s hand got severed. Accused Surendra Tiwary attacked Rajpati Tiwary by means of sword on Rajpati Tiwary’s left hand., accused Sri Hari Tiwary instigated others to kill Rajpati Tiwary and though Rajpati Tiwary tried to escape, the accused persons caught hold of him and pushed him to the ground and, thereafter, Rajendra Tiwary, Surendra Tiwary, Sri Hari Tiwary and Brijmohan Tiwary, killed Rajpati Tiwary. Brahama Tiwary was keeping a watch, down stairs, lest Rajpati Tiwary tried to escape. The informant, somehow, got

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hold of Rajendra Tiwary and snatched away his sword and kept it on the roof . On hearing hulla , her grand daughter, Usha Kumari (P.W.5), who was sleeping in the house, too, rushed to the roof and began raising hulla that the accused had committed murder. On hearing hue and cry, informant’s neighbour, Gorakh Tiwary (P.W.2), too, witnessed the occurrence from his roof. In the mean-time, the accused persons made good their escape.

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(iii) The motive behind the occurrence is long pending litigation with the accused persons.

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(iii) On the basis of the informant’s fardbayan, dated 07.08.1982, Nawanagar P.S. case No. 82 of 1982 was registered, under Section 302 read with Section 34 of the Indian Penal Code, against the accused persons.

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3. The police, after investigation, submitted charge sheet against the accused persons aforementioned and the learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions. After commitment of the case, a charge was framed under Section 302 read with Section 34 of the Indian Penal Code. To the charge so framed, all the accused pleaded not guilty and claimed to be tried.

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4. Prosecution examined altogether 12 (twelve) witnesses in support of its case, who are as follows: P.W. 1 (Murat Ram) is an advocate’s clerk, P.W. 2 is Gorakh Nath

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Tiwari, P.W. 3 is Savitri Devi, P.W. 4 is Manoj Kumar Tiwary, P.W. 5 is Usha Devi, P.W. 6 (Munako Devi) is the informant of the case, P.W. 7 is Ram Ratan Tiwary, P.W. 8 is Ram Kailash Tiwary, P.W. 9 is Ram Suresh Tiwary, P.W. 10 is Dr. Binod Kumar Singh, P.W. 11 Tarkeshwar Prasad is an Advocate Clerk and P.W. 12 (Ram Bichan Rai) is the investigating officer of the case.

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5. The defence also examined six witnesses primarily to establish and prove the alibi of one of the accused, namely, Brij Mohan Tiwary. The case of the appellants, in their statements recorded under Section 313 Cr.P.C., is complete denial of their involvement in the alleged occurrence. The learned trial Court, on consideration of the materials on record, acquitted Brij Mohan Tiwary by accepting his plea of alibi and also acquitted Brahma Tiwary of the charge. The learned Trial Court, however, convicted the remaining three accused, namely, Rajendra Tiwary, Surendra Tiwary and Sri Hari Tiwary, aged 60 years then, under Section 302 read with Section 34 of the Indian Penal Code and passed sentences against them as indicated above.

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6. Aggrieved by their conviction and the sentence passed against them, the appellants, as convicts, have preferred these appeals.

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7. Both these appeals having, thus, arisen out of the

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impugned judgment of conviction, dated 08.04.1993, and the impugned order of sentence, dated 12.047.1993, these appeals have been heard together and are being disposed of by this common judgment and order.

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8. We have heard Mr. Ajay Kumar Thakur, learned counsel, appearing on behalf of the appellants, and Mr. Mayanand Jha, learned Additional Public Prosecutor, appearing for the State.

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9. The prosecution, in order to bring home the charge, as already noticed, examined 12 witnesses, out of whom P.W. 1 (Murat Ram) is a formal witness and has proved the First Information Report written in the handwriting of SubInspector Ram Bichar Singh. P.W. 7 (Ram Ratan Tiwary) has proved his signature on seizure list as well as on the inquest report conducted on the dead body of Rajpati Tiwary. P.W. 11 (Tarkeshwar Prasad) is an Advocate Clerk and he has proved seizure list (Ext.4) and inquest report (Ext.5) prepared by the carbon process in hand-writing of Sub Inspector Ram Bichar Singh. P.W. 8 (Ram Kailash Tiwary) has been declared hostile and P.W. 9 (Ram Suresh Tiwary) has been tendered. P.W. 10 (Dr. Binod Kumar Singh) conducted post mortem examination on the dead body of Rajpati Tiwary, on 8.8.1982, at 8 A.M.. Besides the doctor (P.W.10), the prosecution has also examined Ram Bichan Rai (P.W. 12), who is Investigating Officer of the

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case. On the point of commission of the occurrence, the prosecution has examined P.W. 2 (Gorakh Nath Tiwary), a neighbour of the said deceased, P.W. 3 (Savitri Devi), daughter-in-law of the informant, Munako Devi (PW 6) and wife of the deceased Rajpati Tiwary, P.W. 4 (Manoj Kumar) is the son of the informant, P.W.5 (Usha Devi) is the grand-daughter of the informant and P.W. 6 (Munako Devi) is the informant, who is mother of the said deceased.

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10. Before we discuss the evidence of the witnesses, it would be relevant to point out that there is no dispute that Rajpati Tiwary was murdered on the roof of his house. P.W.10 (Dr. Binod Kumar Singh), who conducted the post mortem examination, found the following ante mortem injuries on the said dead body:

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“(1)Left upper arm-(a) hand chopped off with laceration over the chopped margin

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(b) in middle of left fore arm two incised wounds size 5” x 2” x deep, and 3” x 1” x deep both incised wounds corresponding to fracture of ulna and radius

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(2) On Right arm – (a) hand chopped off except thumb

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(b) right fore-arm 3” above the wrist one incised wound 2” x 1” deep, (2) on middle of right fore arm ventral surface 3” x 2” x deep which corresponded to fracture of bone

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(c) On the upper surface of right shoulder one incised wound 3” x 2” x deep fracture of right clavicle

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(3) In the neck- (a) one incised wound on lateral and back surface of the root of the neck 7” x ½” x deep corresponding to the cervical vertebra fracture

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(b) One incised wound over front of root of neck 6” x 2” x deep with fracture of right

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mandible

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(c) Chopping of the chin together with the corresponding bone, chopped area lacerated

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(d) One incised wound over the middle of right side of the face externally behind the right ear to the right angle of the mouth together with the fracture of the corresponding angle of right mandible and the teeth

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(e) Chopping of nose.”

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11. In the opinion of doctor (PW 10), death was caused due to shock and hemorrhage resulting from mixed effect of different injuries caused by sharp cutting weapons, such as, sword. According to the doctor (PW 10), time elapsed since death was 24 to 48 hours. For the purpose of so assessing the time, no reason has been assign by the doctor (PW 10) and, hence, the time of death cannot be determined on the basis of the medical evidence on record.

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12. In order to determine, whether the appellants have committed murder of the deceased, we would, now, examine the ocular evidence of P.W.21, P.W. 3, P.W. 4, P.W.5 and P.W. 6, who are said to be the eye witnesses of the occurrence.

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13. In her evidence, the informant (P.W. 6) has deposed that in the fateful evening, she was sleeping on the roof of her house, her son, Rajpati Tiwari, and her daughter-inlaw, Savitri Devi (PW 3), were also sleeping on the roof. It is in the evidence of PW 6 that her son, Rajpati Tiwari, slept on a cot near the Marai on the southern side of the roof and that Marai

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was open from all four sides. It is also in the evidence of the informant that she was sleeping at a distance of about 2 cubits on east of the said Marai and her daughter-in-law was sleeping 2 to 3 cubits on the west of the Marai, she (PW 6) woke up on hearing clattering sound coming from the north eastern direction of the roof and found that the accused persons had climbed up the roof from eastern direction and had landed on tiles, iron and wood kept around. It is also in the evidence of PW 6 that acused Surendra Tiwary and Rajendra Tiwary were armed with big swords, whereas Brij Mohan Tiwary (since acquitted) and Sri Hari Tiwary were armed with small Swords, they entered the Marai and accused Rajendra Tiwary hurled the first blow with his sword on the face of Rajpati Tiwary, whereupon accused Surendra Tiwary struck Rajpati Tiwary with his sword on the left wrist, which got severed. According to PW 6, the accused Surendra Tiwary, again, attacked Rajpati Tiwary with the sword on his right hand due to which all the four fingers except thumb of Rajpati Tiwary got severed and, at that time, accused Sri Hari Tiwary was instigating others to kill Rajpati Tiwary and though Rajpati Tiwary tried to escape, first, towards the west and, then, towards the north, all the accused threw him on the floor and began to assault him. PW 6 has deposed that though she (PW 6) and her daughter-in-law, Savitri Devi (PW 3), tried to rescue Rajpati Tiwary, they were

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pushed aside. PW 6 has also deposed that besides the said four accused on the roof, she also saw Brahama Tiwary (since acquitted) armed with small sword in the lane keeping a watch if Rajpati Tiwary tried to escape. PW 6 has deposed that she succeeded in snatching away the sword from accused Rajendra Tiwary as the latter, along with others, tried to flee away. It is in the evidence of the informant (PW 6) that the accused persons escaped by jumping on to the roof of Gorakh Tiwary (P.W.2). It is also in the evidence of PW 6 that her grand daughter, Usha Devi (P.W.5), and grand son, Manoj Kumar (P.W. 4), who were sleeping in the house, came on the roof on hearing hulla and witnessed the occurrence. It is also in the evidence of PW 6 that in the meantime, Ram Kailash Tiwary and Ram Sandesh Tiwary also arrived and Gorakh Tiwary, who was on the roof of his house, too, raised alarm.

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14. P.W. 3 (Savitri Devi), widow of the said deceased, has supported the prosecution’s case inasmuch as she has deposed that she was sleeping on the roof along with her mother-in-law and her husband, her mother-in-law was sleeping on the eastern side of roof, whereas her husband was sleeping towards south in the Mara and on hearing cry of her mother-in-law as well as sound of „dhum dhum‟, she woke up from slumber and saw accused Rajendra Tiwary and Surendra Tiwary entering into the Marai carrying swords in their hands

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and both of them assaulted her husband with swords, while accused Sri Hari Tiwary and accused Brij Mohan Tiwary surrounded the said deceased in order to prevent any possible escape. It is in the evidence of PW 3 that accused Rajendra Tiwary and Surendra Tiwary took her husband towards north of Marai and pushed him down and inflicted a number of injuries and when she (PW 3) tried to intervene, Rajendra Tiwary pushed her away. It is also in the evidence of PW 3 that she, along with her mother-in-law and her son Manoj Kumar (P.W. 4) and her daughter Usha Devi, who, too, had come on the roof, raised hulla and, then, she saw Brahma Tiwary with sword in the lane located on the west of her house and after killing her husband, the accused made good their escape by jumping on the roof of Gorakh Tiwary (P.W.2).

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15. P.W. 5 (Usha Devi), too, has given ocular account of the incident. She (PW 5) has deposed that in the midnight of 6.8.1982, she (PW 5) was sleeping with her brothers, Manoj and Subodh, in a room, very near to the staircase, on the ground floor and she woke up from slumber on hearing hue and cry on the roof and she, immediately, took to the staircase followed by her brother, Manoj Kumar. PW 5, too, has supported the evidence of the rest of the prosecution case.

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16. P.W. 4 (Manoj Kumar), the son of the deceased, too, has stated that he (PW 4) was sleeping in the

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house in the midnight of 6.8.1982 and, on hearing hulla he, too, came on to the roof along with his sister. He, too, has supported the rest of prosecution case.

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17. P.W. 2 Gorakh Tiwary is a neighbour of the deceased. He claims to have got up on hulla being raised from the roof of Rajpati Tiwary. He went towards the end of his roof which is almost adjacent to the roof of Rajpati. He saw, in the moonlight, Rajpati fallen on his roof and was being cut by all the accused persons. He saw Brahama Tiwary armed with a Katta keeping a watch on the lane near to the house of Rajpati.

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18. Apart from ocular evidence, the prosecution examined the Investigating Officer (PW 12) in support of its case that Rajpati Tiwary was done to death on the roof of his house. The Investigating Officer, in his evidence, has stated that on 7.8.1982, while he was posted at Nawanagar P.S., Munako Devi (PW 6) came there at about 8 A.M. and lodged a fardbeyan and, based on the said fardbayan, a case was registered, he reached the place of occurrence at 10:00 AM.

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19. According to the Investigating Officer, the place of occurrence was a house built of bricks, there being a stair on the southern portion of the house for going to the roof. It is in the evidence of PW 12 that there was a Marai (a temporary shed) made of straw on the south side of roof near the stairs. The Marai was erected with the help of three

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bamboos and was open on all sides. A cot was found on the west of Marai as well as east of Marai. The cot in the west was made of thin rope and the cot in the east was made of wooden on which the deceased was said to be sleeping. There was a bed cover on the cot. He seized woolen cover, one Gamcha , bed cover, one pillow all smeared with blood. He also seized blood stained sword from near the body of the deceased. The dead body was found 18 ft. away from the hut on the north western side of the roof. Amputated left wrist of the deceased was found, at a distance of 6 feet from the cot, towards east. He found a lot of blood near the dead body which had trailed towards north-eastern corner. The roof of Rajpati Tiwary was 4 feet higher than the wall of Gorakh Tiwary. Towards the northeast, there was 6 ft. high wall of Gorakh Tiwary covered with tiles. The blood marks were trampled.

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20. The case of the defence is that there is no eye witness to the occurrence. It has not disputed the murder. According to them, the presence of P.W. 4 (Manoj Kumar Tiwary), son of the deceased, at the time of occurrence, is doubtful, as he was not named by P.W. 6 (Munako Devi) in the First Information Report, which was lodged after 8 hours of the occurrence, and the learned trial Court has rightly discarded his evidence. Further-more, P.W. 7 (Ram Ratan Tiwary) has, in his evidence, stated that it drizzled on the fateful night, which

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circumstance would cut at the root of the prosecution’s case and make it doubtful that the informant (P.W. 3) were sleeping in open roof by the side of the Marai , where the said deceased was sleeping before he was put to death. The stomach of the deceased contained semi-digested food, which belies the prosecution case that the deceased was murdered at about midnight. Besides this, the evidence of the eye witnesses is full of contradictions.

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21. We will, now, take one by one, the points urged by the defence. The defence, firstly, argued that P.W. 4 was not named in the First Information Report by his grandmother (P.W. 6) and his presence, thus, has rightly been doubted by the learned trial Court.

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22. Learned Additional Public Prosecutor, appearing on behalf of the State, argued that the First Information Report is not an encyclopedia of all facts. It is quite natural that all names and details may not find place in a First Information Report. We would broadly agree with the submission of the defence that the First Information Report may not contain each and every detail of the incident including the name of all the accused and of the witnesses. However, the First Information Report should convey a broad story of the prosecution’s case and not mentioning of material and vital facts would affect its veracity and credibility. Reference, in this

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regard, can be gainfully made to a decision in the case of Arulvelu and Another v. State and Another, reported in 2010 Cri. L.J. 433 .

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23. Considering the fact that the occurrence allegedly took place at around middle of the night and the First Information Report was lodged on the following day at 08:00 AM, there is no reason why the First Information Report did not mention the name of Manoj Kumar Tiwary (PW 4), when the names of other witnesses were mentioned therein. The learned trial Court has, therefore, correctly doubted that PW 4 was a witness to the occurrence. We have no reason to take a different view than the one, which the learned trial Court has taken.

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24. We find that as per First Information Report , both P.W. 4 and P.W. 5, who are grand children of P.W. 6, were sleeping in the house. On hearing hulla raised from the roof, P.W. 4 and P.W. 5, said to have come on the roof through the stairs. P.W. 6 has named P.W. 5, the sister of P.W. 4, whereas she has not named P.W. 4 in the First Information Report . The learned Trial Court doubted the presence of P.W. 4 on the roof on the premises that had he too arrived on hearing hulla , her grand mother would not have missed to name him in the First Information Report, when the First Information Report was lodged after 8 hours of the occurrence. We find no reasons to

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take a different view than the one taken by the learned Trial Court. This apart, when PW 4 has not been named, it is highly hazardous to still rely on the evidence of the informant that PW 5, daughter of PW 4, came to the roof and witnessed the occurrence.

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25. Moreover, what cannot be ignored is that the description of the occurrence, given by both, PW 4 and PW 5, depicts the occurrence from the very inception, which is wholly unbelievable inasmuch as these two witnesses, PW 4 and PW 5, had, according to the evidence on record, came to the roof on hearing hulla after the assailants had allegedly started assaulted the said deceased.

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26. To our mind, therefore, it is wholly unsafe to rely on the evidence of PW 5 too.

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27. Learned counsel for the defence submits that the evidence of P.W. 7 cuts at the root of the prosecution’s case inasmuch as he has stated that there was drizzling in fateful night and, as such, story of P.W. 3 and P.W. 6 sleeping on roof, outside the Marai, becomes doubtful.

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28. So far as P.W. 2 (Gorakh Nath Tiwary) is concerned, he is neighbour of the deceased. He, too, claims to have seen the occurrence from his roof. The Investigating Officer in paragraph 11 stated that Gorakh Nath Tiwary did not state before him that the accused persons indiscriminately

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assaulted the deceased with sword. He did not state that P.W. 6 snatched the sword from the accused. He did not take the name of P.W. 4 (Manoj Kumar) as being present at the time of commission of the occurrence. This witness, in his evidence, stated that Brahama Tiwary was moving with a Katta like sword. In view of the contradictions noticed in his evidence, we do not find his evidence fully reliable. However, no other witness, including the Investigating Officer or the defence witness supported the said version of P.W.7. Even the Investigating Officer has found no trace of rain, though he visited the place of occurrence the next morning. It is of utmost importance to note that the Investigating Officer also contradicts the statement of P.W. 7 that the latter stated before him that there was drizzling in the night. We, thus, do not find his evidence reliable.

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29. Coupled with the above, both, P.W. 3 and P.W. 6 have deposed, in their evidence, that Rajendra Tiwary struck with sword on the face of Rajpati Tiwari. However, the Investigating Officer, in his evidence, has denied of any such statement having been made by them in their earliest statements recorded by him. The Investigating Officer, in paragraph 12, has stated that P.W. 3 (Savitri Devi) did not state that the accused persons pinned the deceased down on north -western side of the roof; rather, she stated that the

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accused had pushed her husband on the western side of the roof. Further-more, Savitri Devi did not state that the finger of the right hand was severed. Similarly, P.W. 6 did not state that Surendra Tiwary struck the deceased on the right wrist. In her evidence before the Court, P.W. 6 has, later on, tried to improve the case by introducing the presence of P.W. 4 on the roof on the fateful night, though she did not name him in the First Information Report.

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30. In view of the contradictions noticed in the evidence of witnesses aforementioned, we do not find it safe to fully rely on their evidence.

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32. Situated, thus, it is clear that there is no convincing, reliable and clinching evidence on record implicating any of the accused-appellants.

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33. In the circumstances indicated above, all the accused-appellants ought to have been given benefit of doubt and acquitted.

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34. In the result and for the reasons discussed above, we hereby allow these appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside and all the three accused-appellants herein are held not guilty of the offences, which they stand convicted of, and we acquit them of the same under benefit of doubt.

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35. Since the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged.

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36. Send back the Lower Court Records along with a copy of this judgment and order.

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(Samarendra Pratap Singh, J.)

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I. A. Ansari, J: I agree.

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(I. A. Ansari, J.)

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Md.Jamaluddin Khan/NAFR

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U √ T √

Surendra Tiwary v. State of Bihar

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Surendra Tiwary v. State of Bihar

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