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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.