Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 78

SUPREME COURT OF INDIA
(From the High Court of Jharkhand at Ranchi)
SANJAY KISHAN KAUL, M.M. SUNDRESH, JJ.
Pappu Tiwary – Appellant
Versus
State of Jharkhand – Respondent
Criminal Appeal No. 1492 of 2021
WITH
Law Tiwari @ Upendra Kumar Tiwari – Appellant
Versus
State of Jharkhand – Respondent
Criminal Appeal No. 1202-1203 of 2014
Decided On : 31-01-2022

Advocates appeared:
For the Appellant(s) : Mr. Shree Prakash Sinha, Adv. Mr. Rakesh Mishra, Adv. Ms. Mohua Sinha, Adv. Mr. Nawalendra Kumar, Adv. Mr. Sidharth Singh, Adv. Mr. Shekhar Kumar, AOR
For the Respondent(s): Mr. Tapesh Kumar Singh, AOR/ AAG Mr. Aditya Pratap Singh, Adv. Mr. Aditya Narayan Das, Adv.

IMPORTANT POINT
Testimony of informant cannot be waived away merely because it is testimony of a close relative.

Headnote:
Indian Penal Code, 1860 – Sections 302/34 read with Section 27 of Arms Act, 1959 – Juvenile Justice (Care and Protection of Children) Act, 2000 – Sections 15 and 16 – Attempt to murder – Common intention – Conviction and sentence – Appellant could not prove plea of alibi – There are no major discrepancies in testimony of eye witnesses as to throw doubt on story of prosecution – There are three eye witnesses – Testimony of informant cannot be waived away merely because it is testimony of a close relative – Similarly, a chance witness explained his presence and stated that he could identify accused who were well-known in the area, even though in a negative sense – Body was sent for post-mortem immediately and FIR was sent to court next morning – There is no loophole which could have been utilised or that FIR was ante-timed – Objective of requirement for sending FIR to Magistrate has been complied with – It is a homicide case – Expert is doctor who carries out post-mortem and has been medico legal expert – Two fire arm injuries have been clearly identified with wounds at the entry and at the exit being identified – Inquest report is not a substantive evidence – There is no discrepancy between medical and ocular evidence – Eye witnesses are categorical that other accused attacked deceased with knives – Story put forth by prosecution has been established and has not been dented by appellant accused so as to cast a doubt and entitle them to benefit of doubt – Appeals dismissed. (Paras 17, 24, 28, 32, 35 and 38)
Facts of the case:
On the basis of the fardbeyan, FIR Garhwa P.S. Case No.33 of 2000 was registered under Sections 302 and 34 of Indian Penal Code, 1860 and Section 27 of Arms Act, 1959 against the six named accused persons. High Court of Jharkhand vide a common judgment dated 07.05.2012 affirmed the judgment of conviction of trial court against all the six convicts. However, in pursuance of an inquiry conducted by Chief Judicial Magistrate on the aspect of juvenility, High Court opined that since Pintu Tiwari was a minor on the date of the incident and had already remained in jail for more than three years, no further order of detention could be passed in view of the provisions of Sections 15 & 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000. As far as appellant is concerned, his bail application was dismissed on 04.10.2021 but with a direction for the appeal itself to be taken up for hearing. Leave was also granted in the said SLP on 23.11.2021.
Findings of Court:
Despite best endeavour learned counsel for the appellant has not been able to cast any doubt on the impugned judgment of the trial court and the High Court.
Result : Appeals dismissed.

JUDGMENT :

SANJAY KISHAN KAUL, J.

Background:

1. On 07.03.2000 at about 1:00 p.m. Vikas Kumar Singh, aged about 22 years was going from his house towards Bhandar for performing physical exercise. It is the case of the prosecution that based on the fardbeyan of his younger brother, Pankaj Kumar Singh which was recorded at Sadar Hospital, Garhwa at 2:00 p.m. when Vikas Kumar Singh reached in front of the house of Ramadhar Ram, all of a sudden six person who were sitting on the road surrounded him; namely Pappu Tiwari (appellant in Crl. Appeal No. 1492/2021), Sanjay Ram, Uday Pal, Ajay Pal, Pintu Tiwari and Law Tiwari (appellant in Crl. Appeal No. 1202-1203/2014). Pappu Tiwari fired from his pistol at Vikas Kumar Singh as a result of which he got injured and fell down by the side of the road. The other accused are alleged to have been carrying knives and they pounced upon him and inflicted 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 arm injuries. The Maruti van was subsequently recovered on 09.03.2000. All the accused were arrested albeit, Law @ Upendra Tiwari was arrested on 16.03.2000. On investigation being completed, the charge-sheet was submitted on 02.06.2000 against all the six persons under Sections 302 and 34 of the IPC and Section 27 of the Arms Act and cognizance of the offence was taken on the same date. The case was committed to the court of Sessions Judge on 26.07.2000 where all six accused persons were charged under Section 302 read with Section 34 of the IPC and Pappu Tiwari was additionally charged under Section 27 of the Arms Act.

3. In the course of Sessions Trial No. 159/2001, the prosecution examined 22 witnesses and the defence examined two witnesses. In terms of the judgment dated 27.05.2002, all the accused persons were convicted as charged and in terms of order dated 28.05.2002, they were sentenced to undergo imprisonment for life. Pappu Tiwari was additionally sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act.

4. The challenge to the judgment of the trial court was laid by two separate appeals. Law Tiwari and Pintu Tiwari jointly filed Criminal Appeal No. 242/2002 while the remaining four convicts filed Criminal Appeal No. 398/2002. The High Court of Jharkhand vide a common judgment dated 07.05.2012 affirmed the judgment of conviction of the trial court against all the six convicts. However, in pursuance of an inquiry conducted by the learned Chief Judicial Magistrate on the aspect of juvenility, the High Court opined that since Pintu Tiwari was a minor on the date of the incident and had already remained in jail for more than three years, no further order of detention could be passed in view of the provisions of Sections 15 and 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Insofar as Sanjay Ram and Uday Pal are concerned, both of them accep