PAPPU TIWARY vs STATE OF JHARKHAND - Supreme Court Case / Judgement 2022

CRIMINAL APPEAL NO.1202-1203 OF 2014

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. A. No.1492/2021), Sanjay Ram, Uday Pal, Ajay
Pal, Pintu Tiwari and Law Tiwari (appellant in Crl. A. 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 chargesheet 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 & 16 of the Juvenile Justice (Care and
Protection of Children) Act, 2000. Insofar as Sanjay Ram and Uday Pal
are concerned, both of them accepted the High Court judgment. That left
three appellants, who took up the matter further to this Court.
5. Pappu Tiwari filed a Special Leave Petition (for short ‘SLP’) with
an application seeking exemption from surrendering. That application
was dismissed by this Court on 09.11.2012 granting four weeks time to
Pappu Tiwari to surrender. On a prayer being made, a further extension
of four weeks was granted to Pappu Tiwari 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
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 was released on 28.09.2016 after
having served out his sentence and, thus, on 01.09.2021 it was inquired
whether he was still interested in prosecuting the appeal to which the
answer was in the affirmative as Law Tiwari wanted to argue the aspect
of his conviction.
9. As far as Pappu Tiwari 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
10. The aforesaid is the background on which these two appeals were
listed before us for hearing.
Crl.A. Nos.1202-1203/2014 (Appeal by Law @ Upendra Tiwari):
11. Insofar as Law Tiwari is concerned, a query was posed to the
learned counsel that on the appeal being jointly preferred by him (Law
Tiwari) and Ajay Pal and appeal of Ajay Pal having been dismissed, the
evidence being common, the role being common, i.e., five people
collectively inflicting knife injuries on the deceased after he was shot,
what could be the defence, which would be available to Law Tiwari.
12. Learned counsel fairly stated that his appeal is within a limited
scope and this Court also admitted the appeal on his plea of alibi.
13. Learned counsel drew our attention to the judgment of the trial
court as according to him there was hardly any discussion in the appellate
court judgment on the particular aspect. The trial court referred to the
depositions of the two defence witnesses, Rajendra Yadav (DW-1) and
Samsuddin Ansari (DW-2). DW-1 deposed in his examination-in-chief
that on 24.01.2000 he had x-rayed the right knee of Law @ Upendra
Tiwari. He proved the cash memo (Ex. A) and stated that he had x-rayed
the knee on the advise of Dr. M.P. Singh. DW-2 stated that he knew Law
@ Upendra Tiwari and on 24.01.2000, he had come to Garhwa from
Silliya Donger by bus. He saw Law Tiwari after falling from motorcycle
who was reeling in pain. He saw another man holding him. A rickshaw
was called and Law Tiwari was put on rickshaw and brought to Garhwa
Hospital to Dr. M.P. Singh, who advised an x-ray. The x-ray was done in
Janta Clinic and the doctor had opined that his leg had broken near the
knee. The man who is stated to have helped Law Tiwari was identified
as Kanchan Yadav. After handing over Law Tiwari to him, DW-2 went
14. Two witnesses were also examined as court witnesses on the
prayer of the defence – Almuddin 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 per the fardbeyan, a formal FIR was registered in PS case
No.6/2000 under Section 364, 365 and 120B of the IPC. The date of
occurrence was 26.01.2000 and the allegation was of kidnapping for
purposes of murder in that case. Law Tiwari was named as an accused in
that case too. The occurrence was of 26.01.2000 and the defence is that
the leg of Law Tiwari was fractured on 24.01.2000. Law Tiwari was
convicted under Section 365 of the IPC vide judgment dated 28.02.2000.
We may, however, note that as per learned counsel for the appellant in the
appeal filed against that conviction, Law Tiwari was acquitted on
16. Learned counsel for the State also submitted that there are three
eye witnesses, Pankaj Kumar Singh (PW-6), Subodh Kumar Singh (PW13) and Chandraman Singh (PW-18) and their testimonies have broadly
been consistent, which assign the role to Law Tiwari. The endeavour to
apprehend him on 07.03.2000 was not successful as he was found
absconding by the IO on six different occasions when his premises were
visited. He was only subsequently arrested and taken on remand on
04.04.2000. The contention of learned counsel for the State was that
neither the advise of Dr. M.P. Singh nor the x-ray having been produced,
and Dr. M.P. Singh not having been produced as a defence witness or
summoned, there was not a piece of paper evidencing the admission and
treatment of Law Tiwari in the hospital which could be produced in
support of his plea of alibi. He also drew our attention to the fardbeyan
to indicate that Law Tiwari and other accused had demanded a
motorcycle of the deceased to go to Meral in connection with a case,
which was declined. Learned counsel for the State also submitted that
the conduct of Law Tiwari even during custody was not proper as he had
extended a threat to the informant and the informant had suffered fire
arm injury on 13.06.2001. Consequently, case No.107/2001 was
registered at the Garhwa Police Station. In the end it was contended that
there was no attempt made to distinguish the appellant’s role from that of
Ajay Pal and the appeal of Ajay Pal being dismissed, the only aspect
which had to be examined was whether the concurrent findings of the
two courts below rejecting the plea of alibi was required to be interfered
with by this Court when the burden lay heavy on the appellant as when
such a plea 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)1
 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 Haryana2
 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 of alibi in fact is required to be proved with
certainty so as to completely exclude the possibility of the presence of
the accused at the place of occurrence and in the house which was the
home of their relatives.”
17. We have given our thought to the limited scope of appeal of Law
Tiwari and we do not find any merit whatsoever in the same. It has been
rightly pointed out by the learned counsel for the State that the burden
was on Law Tiwari to establish the plea of alibi (Vijay Pal3
 and Jitender
), which he failed to discharge. It was not a case where
(2015) 4 SCC 749
(2012) 6 SCC 204
opportunity was not granted to him. In fact, two witnesses were
produced in defence by Law Tiwari and two court witnesses were also
summoned. However, the relevant evidence was not led.
18. It has been rightly pointed out that the most material witness
would have been Dr. M.P. Singh, who was not produced as a defence
witness nor summoned.
19. We may note that there is some identity confusion in the judgment
of the trial court as a reference has been made to one Dr. M.P. Singh
(PW-1), who is not the same doctor. The advise stated to be given by Dr.
M.P. Singh was also not proved nor was the x-ray plate produced. DW-2
stated that he took Law Tiwari to Garhwa Hospital but no papers of
admission or treatment at the hospital were produced in support of the
treatment of a fractured leg in the hospital. Thus, on all these aspects
Law Tiwari failed to discharge the burden to establish the plea of alibi
and, thus, the trial court and the High Court cannot be said to have fallen
into any error in rejecting the plea of alibi. This was the only aspect to be
examined by us.
20. We may note that there is discussion in the trial court judgment on
the aspect of another case registered against Law Tiwari and his
conviction in the said case. The incident was contemporaneous to his
alleged fracture and, thus, the plea based on the fracture was found to be
unsustainable as Law Tiwari was convicted in the said case. He has,
however, filed the order of acquittal in appeal. This is the reason we
have not delved on this aspect but in view of our finding aforesaid this
aspect does not remain crucial.
21. The result of the aforesaid is that we find no merit in the criminal
appeal of Law @ Upendra Tiwari.
Crl.A. No.1492/2021 (Appeal by Pappu Tiwari):
22. Learned counsel for the appellant sought to raise multifarious 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
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 the prosecution. There are
three eye witnesses. The testimony of the informant, PW-6, cannot be
waived away merely because it is the testimony of a close relative.
Similarly, PW-13 albeit a chance witness, explained his presence and
stated that he could identify the accused, who were well-known in the
area, even though in a negative sense. We may note, however, insofar as
the third eye witness, PW-18, is concerned, the High Court has not relied
upon his testimony on account of delay of more than two months in
examination of this witness who claimed to be an eye witness and was
the maternal uncle of the deceased.
25. Learned counsel vehemently sought to contend that the FIR was
ante timed and that itself would throw a doubt on the story. The FIR was
recorded on 07.03.2000 in the early afternoon but reached the court on
the next date on 08.03.2000 even when the distance between the court
and the police station was hardly a kilometre.
26. On the other hand learned counsel for the State pointed out that the
incident occurred at 1300 hours on 07.03.2000, at 1343 hours the
telephone call from the hospital reported that the injured had come to the
hospital and the time of the recording of the fardbeyan is 1400 hours.
The inquest report was prepared at 1410 hours and the FIR was
registered at 1425 hours. The body was received for post-mortem at
1445 hours and simultaneously the IO reached the place of occurrence.
The post-mortem commenced at 1550 hours. The IO returned home at
midnight and had gone to the house of the accused several times. The
FIR, thus, reached the court on 08.03.2000. These sequences of timings
and dates were pointed out to show that there could be no scope of ante
dating the FIR.
27. We may examine this aspect in the context of the judgment cited
by learned counsel for the appellant in Sudarshan & Anr. v. State of
. The relevant paragraph pointed out by learned counsel
(2014) 12 SCC 312
for the appellant shows that Column 15 of the FIR in the said case
pertained to date and time of dispatch to the Court which was left blank.
The IO could not prove as to when and how the FIR was sent to the
court. The necessity of doing so was emphasised in the judgment as as
the primary purpose is to ensure that truthful version is recorded in the
FIR and there is no manipulation or interpolation therein. That is the
reason this statutory requirement 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 Cr.P.C. 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
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 which would indicate that the fardbeyan was lodged only after
the post-mortem report. The factual basis for the same is stated to be that
in the inquest report six injuries are mentioned with no mention of
gunshot injury while the post-mortem report shows that there are 26
injuries including the gunshot injury. The pistol was not recovered from
him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both
the fardbeyan as well as the inquest report was not examined by the
prosecution. On this aspect learned counsel relied upon the observations
in Maula Bux & Ors. v. State of Rajasthan6
30. On the other hand learned counsel for the State sought to submit
that inquest report cannot be treated as substantive evidence but may be
utilised for contradicting the witness of inquest (Suresh Roy v. State of
). He submitted that the inquest report is not really an evidence by
(1983) 1 SCC 379
(2000) 4 SCC 84
itself and cannot be pitted against the evidence of the medical witness in
court (Surjan & Ors. v. State of Rajasthan8
). Learned counsel drew our
attention to the observations in Pedda Narayana & Ors v. State of
Andhra Pradesh9
opining that the object of proceedings under Section
174 Cr.P.C. is merely to ascertain that whether the person has died under
suspicious circumstances or an unnatural death and if so what is the
apparent cause of death. The details, however, as to how the deceased
was assaulted or who assaulted him would be foreign to the scope of
proceedings under Section 174 of the Cr.P.C., nor are such details
required to be mentioned in the inquest report (Yogesh Singh v.
Mahabeer Singh & Ors.10).
31. Learned counsel next turned to the more recent judgment of this
Court in Tehseen Poonawalla v. Union of India11 opining that the
purpose of holding an inquest is limited and the inquest report does not
constitute substantive evidence. As compared to an inquest report, the
doctor who conducts the post-mortem examination, examines the body
from a medico-legal perspective. It is, thus, the post-mortem report that
is expected to contain the details of injuries through a scientific
8 AIR 1956 SC 425
(1975) 4 SCC 153
10 (2017) 11 SCC 195
11 (2018) 6 SCC 72
examination. In that context he submitted that Maula Bux & Ors.12 case
did not help the appellant as a police officer who prepared the inquest
panchnama is 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.
12 (supra)
33. The third aspect emphasised by learned counsel for the appellant
was the alleged discrepancy between the medical evidence and ocular
evidence. PW-1 found 26 injuries on carrying out the post-mortem on
the deceased. Learned counsel pointed out that on being asked about the
distance from which the fire arm was used, he did not express any
opinion. Learned counsel also points out that the case of prosecution is
that after the fire arm injury by Pappu Tiwari, the deceased fell down and
the other accused persons assaulted him with knives. No explanation is
forthcoming on the backside of the deceased. As per the story of the
prosecution, the witness was going towards the gym at around 1:00 p.m.
but the post-mortem report reveals that the stomach was empty and the
rectum and the bladder full which would show that the person had not
eased himself and had also not taken his breakfast. This should be a
position in the morning hours and not in day time.
34. On the other hand, learned counsel for the State referred to the
testimony of the eye witnesses as also of the medical officer PW-1. On
the issues such as what fire arm was used, whether the injuries were
caused by bullet or pellet and the distance from which the fire arm was
used, it was submitted that where the weapon and ammunition is of
uncertain make and quality, the normal pellet pattern based on standard
weapon and ammunition cannot be applied with accuracy (Prahlad
Singh & Ors. v. State of M.P.13).
35. On consideration of this plea, we find that really there is no
discrepancy between the medical and ocular evidence but too much is
sought to be made out by learned counsel for the appellant on the doctor
not opining about the distance from which the fire arm injury was
caused. Further, the eye witnesses are categorical that the other accused
attacked the deceased with knives. In such a process of five persons
attacking the deceased it cannot be said that the deceased would be lying
in the same position and, thus, there is every possibility of injuries both
at the back and front. In the nature of the incident and the testimony of
the eye witnesses, a doubt must be cast on the story and not merely some
aspect of the food consumption pointed out. We cannot really see any
such infirmity which would cause us to reverse the concurrent findings of
the courts below.
36. The remaining arguments of learned counsel for the appellant are
based on plea of defective investigation, absence of independent
witnesses but then there is no reason why the eye witnesses story, which
13 (2011) 15 SCC 136 – Para 9
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 the view that 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.
38. In the conspectus of the discussion aforesaid, we are of the view
that the story put forth by the prosecution has been established and has
not been dented by the appellant accused so as to cast a doubt and entitle
them to benefit of doubt. The result is that both the appeals are dismissed
leaving the parties to bear their own costs.
[Sanjay Kishan Kaul]
[M.M. Sundresh]
New Delhi.
January 31, 2022.

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