Sachchey Lal Tiwari vs State Of U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2004 Supreme(SC) 1249

2004(7) Supreme 282
SUPREME COURT OF INDIA
(From Allahabad High Court)
Arijit Pasayat & C.K. Thakker, JJ.
Sachchey Lal Tiwari -Appellant
versus
State of Uttar Pradesh -Respondent
Criminal Appeal No. 270 of 2001
With
Criminal Appeal No. 271/2001
Decided on 6-10-2004
Counsel for the Parties :
For the Appellant in Crl.A.No. 270/2001 and Respondent in Crl.A.No. 271/2001 : Shiva Pujan Singh, Advocate.
For the Respondent : R.K. Singh and Jitendra Kumar Bhatia, Advocates.

Headnote:(i) Indian Penal Code, 1860-Section 302-Two deceased brothers and their father PW 1 reached field and asked accused not to dismantle the demarcating line-There was exchange of hot words and appellant fired with pistol on both deceased who died instantaneously on spot-Conviction by Courts below-Appeal-Contention that case was covered by Exception 4 to Section 300 IPC-It must be established that act was committed without premeditation, in a sudden fight in heat of passion upon sudden quarrel and offender had not taken undue advantage and had not acted in cruel or unusual manner-Expression "undue advantage" means "unfair advantage"-Exception had no application to the facts and conviction called for no interference. (Para 9)
       (ii) CRIMINAL TRIAL-Chance witness-In a trial by describing an independent witness as "chance witness" it cannot be implied thereby that his evidence is suspicious and his presence is doubtful-Where Courts below scanned evidence of such witness and found it acceptable, there would be no reason to differ.
       Held : Coming to the plea of the accused that PW-2 was chance witness who has not explained how he happened to be at the alleged place of occurrence it has to be noted that the said witness was independent witness. There was not even a suggestion to the witness that he had any animosity towards any of the accused. In a murder trial by describing an independent witness as chance witness it cannot be implied thereby that his evidence is suspicious and his presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere chance witnesses . The expression chance witness is borrowed from countries where every man s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. The courts below have scanned the evidence of PW-2 in great detail and found it to be reliable. We find no reason to differ. (Para 7)
       (iii) Indian Penal Code, 1860-Section 302-Conviction of accused with help of Section 34 IPC was set aside by High Court-State appeal-Accused was alleged to have given exhortation to other convict accused to fire at deceased-In appeal against acquittal though Court had power to review evidence, paramount consideration would be to ensure that miscarriage of justice is prevented-High Court analysed evidence and found that it was not possible for witness to hear exhortation because of distance-View taken by High Court was possible view-No reason to interfere. (Paras 10 and 11)

JUDGMENT

Arijit Pasayat, J.-These two appeals are interlinked having their foundation on a judgment of the Allahabad High Court. Appellant Sachchey Lal Tiwari (in Criminal Appeal No. 270 of 2001) and Bachchey Lal Tiwari (respondent No. 1 in Criminal appeal No. 271 of 2001 filed by the State of Uttar Pradesh) faced trial for alleged commission of offences punishable under Section 302 and Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC ). Both were found guilty and accordingly convicted while death sentence was imposed on the former, life sentence was imposed on the latter. Reference was made to the High Court for confirmation of the death sentence and appeals were filed by the accused persons. By the impugned judgment High Court altered the sentence to life sentence for the former and directed acquittal of the latter.

2. Facts giving rise to the prosecution of the two accused are that the complainant Achhaiber Misra (PW-I) and both the accused are residents of Village Ledupur within the circle of police station Sarnath district Varanasi in Uttar Pradesh. The agricultural fields of the two sides also adjoin each other near the old brick kiln towards east and south of the village. The ground level of the field of complainant Achhaiber Misra is slightly higher than the level of the plots of the appellants. On 3.11.1995 at about 6.45 A.M., the accused persons Sachchey Lal Tiwari and Bachchey Lal Tiwari sons of Mahajan Tiwari and Pintoo grand-son of Mahajan Tiwari were dismantling the demarcating line (Mend) between the fields of the complainant Achhaiber Misra and the accused. The complainant Achhaiber Misra witnessed it and he along with his sons Vijai Shanker Misra and Surender Nath Misra (hereinafter referred to as deceased by their respective names) reached near the field and asked the accused not to dismantle the demarcating line of the field. There was exchange of hot words between the two sides. Pintoo grandson of Mahajan Tiwari took out a pistol and handed it over to the accused Sachchey Lal Tiwari and then Pintoo and Bachchey Lal Tiwari exhorted by saying that the complainant side should be killed. On it Sachchey Lal Tiwari, accused fired with the pistol at deceased Vijai Misra and deceased Surender, as a result of which both sustained fire arm injuries and died instantaneously on the spot. The occurrence was witnessed by Prem Nath Misra, Rama Kant Misra (PW-2) and other village persons and thereafter the two accused and Pintoo ran away from the scene of occurrence, leaving behind the dead bodies. Complainant Achhaiber Misra went to the police station Sarnath in district Varanasi and lodged a written report (Ex. Ka-1) there at about 8.15 A.M. On it G.D. entry was made at the police station and a case against the appellants was registered. The Investigating Officer, S.I. Sri Sita Ram Chaudhary (PW-6) reached the scene of occurrence. He inspected the site and prepared the site plan Ex. Ka-6. Thereafter he recorded the statements of the witnesses and took the sample and blood stained earth from the scene of occurrence and also prepared the Panchayatnamas of the dead bodies. The dead bodies were sent to District Hospital, Varanasi where post mortem examination was conducted on 4.11.1995 vide post mortem reports Ext. Ka-17 and Ka-18. After completing necessary formalities of investigation, charge-sheet was submitted against the appellants who pleaded not guilty to the charges and claimed to be tried. The defence of the accused was that they have been falsely implicated in this case due to previous enmity and ill-will.

3. In support of its case the prosecution examined seven witnesses in all. Achhaiber Misra (PW-1), Rama Kant Misra (PW-2) were claimed to be eye witnesses. The defence also examined Yagya Narain Misra (DW-1) and Prem Nath Misra (DW-2). The learned lower court scrutinized the entire evidence on record, believed the prosecution theory, convicted the accused and sentenced them as abo

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2004 Supreme(SC) 1249

Cases Referred (9)