Full Judgment Text
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PETITIONER:
NARBDESHWAR TIWARY, DWARIKANATH TIWARY, MITHILESH UPADHYAY
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT: 24/04/1997
BENCH:
M.K. MUKHERJEE, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
WITH
CRIMINAL APPEAL NO. 39 OF 1996
WITH
CRIMINAL APPEAL NO. 38 OF 1996
J U D G M E N T
M.K. MUKHERJEE, J.
Mithilesh Upadhyay, Dwarikanath Tiwary and Narbdeshwar
Tiwary, the three appellants in these appeals and two
others, namely, Gorakh Singh and Raghunath Singh were
arraigned before the 4th Additional Sessions Judge. Rohtas
at Sasaram to answer charges under sections 302/34 of the
Indian penal code and 27 of the Arms Act. The trial ended in
conviction of all of them under section 302/34 IPC and four
of them (excluding Gorakh Singh) under section 27 of the
Arms Act. In appeals preferred by them the High court set
aside the conviction recorded against Gorakh Singh and
Raghunath Singh but upheld the convictions of the three
appellants. Hence these three appeals at their instance.
Briefly stated the prosecution case is that on January
1, 1989 at or about 12 noon Ajit Tiwary ( the deceased)
along with his minor daughter Kumari Sadhana was proceeding
from his house in village Kumhau within the police station
of sheosagar. On the way when they reached the house of
Dwarikanath, he along with the other accused persons
accosted them. Then on exhortation of Gorakh Nath (since
acquitted) Narbdeshwar fired at Ajit with a gun. When Ajit
tried to run away to save his life Mithilesh fired at him
with a rifle which hit him on the chest. Dwarikanath also
fired from his rifle at the same time. Ajit then ran towards
his baithak and fell down near the door. Chandradeep Tiwary
(P.W.6), a cousin of Ajit, Sudama Singh (P.W.2), Paras Nath
Tiwary (P.W.4), Rajeshwar Singh (P.W.5) and one Mangal Singh
(not examined) , who were then on the roof of he house and
had seen the firing, hurriedly came down. Carrying Ajit on
a cot they then proceeded towards Sasaram for his treatment.
However, by the time they reached the outskirts of their
village Ajit succumbed to his injuries. Leaving the dead
body of Ajit at the village gate under care of others
Chandradeep went to Sheosagar police station and lodged a
report. On that report (Ext.4) a case was registered and
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Madhusudan Sharma (P.W.7), the officer in charge of the
police station took up investigation. He first went to the
place where the dead body of Ajit was laying: and after
preparing the inquest report sent it for post-mortem
examination. Sri Sharma then went to the place of occurrence
and seized blood from the baithak of Ajit. On completion of
investigation the police submitted charge sheet and in due
course the case was committed to the court of sessions.
The motive that was ascribed by the prosecution for the
above murder was that there was a long standing dispute over
property between the appellant Narbdeshwar and the family of
Ajit.
The appellants pleaded not guilty to the charges
levelled against them and stated that they had been falsely
implicated. Mithilesh Upadhyay took a specific plea of alibi
and contended that on the date of occurrence he was
undergoing treatment at the Banaras Hindu University
hospital.
In support of their respective cases the prosecution
examined nine witnesses while the defence examined ten. Of
the witnesses examined by the prosecution Arvind Tiwari
(P.W.1), Sudama Singh (P.W.2), Parasnath Tiwari (P.W.4),
Rajeshwar Singh (P.W.5) and Chandradeep Tiwari (P.W.7), who
lodged the FIR, figured as eye witnesses. After detailing
and discussing the evidence adduced by the parties
threadbare the trial court accepted the case of the
prosecution in preference to that of the defence. In appeal
the High court also reappraised the evidence in the light of
the criticism levelled by the appellants for rejection of
the prosecution case and upheld all the findings recorded by
the trial court. On perusal of the High court we find that
the High court discussed at length the witnesses examined on
behalf of Mithilesh to prove his alibi and observed that he
(Mithilesh ) failed to produce any reliable document in
support of his claim that he was staying in one of its
hostel at the material time. The High court also took note
of the fact that his further claim that on the day in
question he was admitted as a patient in the hospital of the
University was not borne out by the evidence adduced on his
behalf.
Mr. Lalit, the learned counsel appearing for the
appellants, urged that the prosecution’s claim that each of
the three appellants fired at Ajit and that each of the
shots hit him was completely belied by the evidence of the
doctor, who on post-mortem examination found only two wounds
of entry. From the impugned judgment we find that this
contention was raised before the High Court and negative
with the following words:
"The witnesses have witnessed the
occurrence from some distance from
the roof of the baithak and the
house. They are consistent in their
testimonies that the accused
Narbdeshwar Tiwary, Mithilesh
Updhyaya and Dwarika Tiwary had
fired from their respective
weapons. The shots appear to have
been fired in quick succession as
such the witness could not have
been in a position to state
precisely which shot hit the
deceased on a particular spot on
his person. if a fire-arm is used
and the shot does not hit the
victim it may be on account of
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misfiring or erratic aim. The
testimonies of the eye witnesses
cannot be discarded merely because
only two wounds of entry were
found."
As we are in complete agreement with the above comments
of the High court we are unable to accept the contention of
Mr. Lalit in this regard.
Mr. Lalit next submitted that in his testimony P.W.5
only stated that Mithilesh was present with a rifle but did
not state that he fired from his rifle. Therefore, Mr. Lalit
submitted, the testimony of p.w.5 completely negatives the
prosecution case and, for eye that matter, falsifies the
evidence of other four eye witnesses that Mithilesh had
also fired at Ajit. we do not find any substance in this
contention for it was elicited in cross examination of P.W.5
that Mithilish fired at Ajit. Read in the context of the
evidence of the other four eye witnesses, of whom P.W.2
(Sudama Singh) was a completely disinterested witnesses it
is evident that P.W.5 omitted to mention the role actually
played by Mithilesh by mistake which he rectified in his
cross examination. mr. Lalit also submitted that the learned
courts below was not at all justified in discarding the
testimonies of the defence witnesses examined to prove the
alibi of Mithilesh including Dr. Kundan Sinha (D.W.6) who
testified that he had examined Mithilesh at sir Sunder Lal
Hospital of Banaras University on January 1 and 32, 1989.
This contention of mr. Lalit is also without any merit. The
High court discussed the evidence of D.W.7 at length and
rejected the same principally on the ground that he could
not identify mithilesh as the person who was admitted in the
emergency out-patient department of the hospital. On perusal
of the High court that no reliable documents were produced
to show that Mithilesh was a research scholar on the date of
the incident, that he was allotted a room in the university
hostel and that he had a health card to entitle him to avail
of the hospital facilities, is unexceptionable.
Having carefully gone through the entire evidence on
record we find no justifiable reason to disturb the
concurrent findings of fact recorded by the learned courts
below. Hence the appeals are dismissed.