Narbdeshwar
Tiwary, Dwarikanath Tiwary, Mithilesh Upadhyay Vs. State of Bihar [1997] INSC
457 (24 April 1997)
M.K.
MUKHERJEE, S. SAGHIR AHMAD
ACT:
HEADNOTE:
WITH CRIMINAL
APPEAL NO. 39 OF 1996 WITH
CRIMINAL APPEAL NO. 38 OF 1996
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 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
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.
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