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TMI Blog2022 (1) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... flicted knife blows on his entire body. Hearing the commotion, Pankaj Kumar Singh rushed in the direction. Seeing the said informant and other villagers coming, the Accused persons fled towards the path made over the Ahar. They are stated to have also threatened persons present against giving any evidence in the matter. Later on, as per the informant, he claims to have derived knowledge that they fled in a Maruti Van bearing registration No. DL-2C-5177, which belonged to Pintu Tiwari. On the basis of the fardbeyan, FIR Garhwa P.S. Case No. 33 of 2000 was registered Under Sections 302 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter referred to as the 'Arms Act') against the six named Accused persons. 2. Assistance Sub-Inspector (for short 'A.S.I.') Rajnikant Jha prepared an inquest report but failed to identify the fire arm injury. The post-mortem was conducted by Dr. Mahesh Prasad Singh, Medical Officer, Sub-Divisional Hospital, Garhwa and the cause of death was opined due to shock and haemorrhage caused by vital and multiple injuries. Injuries one and two were identified as firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18.02.2013 to surrender failing which the SLP would be dismissed without reference to the Court. Pappu Tiwari did not surrender and, thus, the SLP came to be dismissed in terms of the order dated 18.02.2013. 6. Law @ Upendra Tiwari and Ajay Pal chose to jointly prefer an SLP along with an application for condonation of delay. The appeals came up for consideration on 19.11.2013 before this Court when the appeal qua Ajay Pal (Petitioner No. 2) was dismissed while issuing notice qua the appeal filed by Law Tiwari. On 07.05.2014, leave was granted qua the said appeal which came to be registered as Criminal Appeal Nos. 1202-1203/2014. 7. Pappu Tiwari was finally apprehended on 25.06.2015. Thereafter, he filed an application seeking restoration of his SLP and condonation of delay in filing the restoration application but after issuing notice, the same was dismissed on 07.03.2017 on the ground of failure to explain the delay of 862 days appropriately. Pappu Tiwari filed a review petition along with an application seeking bail on 22.01.2021. The review petition was considered and allowed on 27.01.2021. The appeals were thereafter directed to be listed. 8. In the mean time, Law Tiwari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uddin Khan (CW-1), who proved the certificate of Dr. M.P. Singh (Ex. A) and receipt of medicine (Ex. A/1) as well as Akshay Kumar Mahto (CW-2) who stated that he knew Law Tiwari, that Law Tiwari had come to Garhwa for marketing, and had gone to see the ailing son of his cousin, Mohan Prasad Mahto in hospital. He claimed to be a witness to the treatment and that Law @ Upendra Tiwari was on bed with his leg plastered though he did not talk to him. In view of the said testimony, the argument which was advanced before the trial court as recorded as also before us was that since on the date of the occurrence his leg was fractured, it was not possible for Law Tiwari to have taken part in the crime and he was falsely implicated in the case. The trial court noted that neither the x-ray plate nor the advise of Dr. M.P. Singh had been produced in court. The doctor had also not been produced by the defence. No papers of admission or treatment at the Garhwa Hospital have been produced in support of the case of admission or treatment of his fractured leg in hospital and the certificate did not support such a case. 15. On the other hand, the case of the prosecution was and is that inter alia as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is raised the Accused must discharge that burden. We may refer to the judicial view in this behalf in Vijay Pal v. State (Government of NCT of Delhi) (2015) 4 SCC 749 wherein this Court held that: 27. In our considered opinion, when the trial court as well as the High Court have disbelieved the plea of alibi which is a concurrent finding of fact, there is no warrant to dislodge the same. The evidence that has been adduced by the Accused to prove the plea of alibi is sketchy and in fact foes not stand to reason. It is not a case where the Accused has proven with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The evidence adduced by the Accused is not of such quality that the Court would entertain a reasonable doubt. The burden on the Accused is rather heavy and he is required to establish the plea of alibi with certitude. In Jitender Kumar v. State of Haryana (2012) 6 SCC 204 this Court stated that: 71. .... The burden of establishing the plea of alibi lay upon the Appellants and the Appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us pleas that the prosecution has to prove its case beyond reasonable doubt. This is not something which is really required to be stated and is the basic principle of criminal jurisprudence. Suffice to say that learned Counsel sought to build on that principle by contending that if a reasonable doubt could be created in the story of the prosecution, the Appellant must succeed. 23. In respect of the aforesaid, learned Counsel sought to refer to the testimonies of the eye witnesses. Pankaj Kumar Singh, the informant is the brother of the deceased who was examined as PW-6. In the fardbeyan he had not taken the name of any witnesses though he referred to them as "many witnesses". It was stated that there was contradiction in the testimonies of the eye witnesses. He further submitted that PW-13 was a chance witness and that his presence at the place was doubtful as he came to the area only ten days prior to the incident for appearing in the matriculation examination and could not have known anybody. 24. We may, however, note that on perusal of the evidence it cannot be said that there are any major discrepancies in the testimony of the eye witnesses as to throw doubt on the story of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is provided Under Section 157 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.'). There was grave suspicion qua the FIR. 28. On the touchstone of the principles laid down aforesaid it can hardly be said that the mandate of law Under Section 157 Code of Criminal Procedure has not been met. On the intimation of the incident, the fardbeyan was recorded expeditiously, inquest report prepared and the FIR was registered within 25 minutes of the same. The body was sent for post-mortem immediately and the FIR was sent to the court the next morning. We cannot say that there is any loophole which could have been utilised or that the FIR was ante timed and, thus, the objective of the requirement for sending the FIR to the Magistrate has been complied with. Thus, there is no merit in this plea. 29. Now turning to the next plea on which a lot of emphasis was placed by learned Counsel for the Appellant, it was urged that there was a major discrepancy between the inquest report (Ex. 3) and the post-mortem report (Ex. 1). This aspect was actually sought to be linked to the plea of the FIR being ante timed. There are stated to be differences in the version ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not an expert in medical jurisprudence. 32. On examination of the aforesaid pleas, insofar as the factual context is concerned, there is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post-mortem report. However, this will not be fatal in our view. We say so keeping in mind the purpose of an inquest report, which is not a substantive evidence. The objective is to find out whether a person who has died under suspicious circumstances, what may be the apparent cause of his death. In the present case the death was unnatural. There were wounds. There is no doubt that it is a homicide case. The expert is the doctor who carries out the post-mortem and has been medico legal expert. The two fire arm injuries have been clearly identified with the wounds at the entry and at the exit being identified. We have already discussed the proximity of the time period between the intimation and the police proceeding with it right up to the stage when the post-mortem commenced. We do not find any substance in this plea. 33. The third aspect emphasised by learned Counsel for the Appellant was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation, absence of independent witnesses but then there is no reason why the eye witnesses story, which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal. 37. The last aspect urged by learned Counsel for the Appellant was that the IO has referred to the antecedents of the Appellant and other Accused, which has been erroneously taken into account by the High Court contrary to the statutory provisions of Section 53 of the Indian Evidence Act, 1872. The said provision stipulates that the previous bad character is not relevant except in reply, i.e., unless evidence has been given of a good character in which case it becomes relevant. However, what has happened in the present case is that the part of the testimony of the IO that the Accused persons were dangerous was not supported by any evidence being led nor has it weighed with the courts below. PW-13 was able to identify the Appellants because they used to pass through the road and are stated to have been known to be "boss of the area". We are, thus, of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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