# Saroj Kumar Tiwari v. State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 822
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-16
- **Case number:** Criminal Appeal No. 2216 of 2014
- **Bench:** Manoj Misra, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saroj-kumar-tiwari-v-state-of-u-p-opp-party-47857
- **Pages:** 19

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence-The
most fundamental principle of criminal
jurisprudence is that the accused must be
and not merely may be guilty before a
court can convict and the mental distance
between 'may be' and 'must be' is long
and divides vague conjectures from sure
conclusions.

In a case based upon circumstantial evidence it
is incumbent upon the prosecution to connect
the links of the circumstances in a single chain
which must establish the culpability of the
accused.

Indian Evidence Act, 1872- Section 8-
Motive- Whatever motive is shown is in
the
confessional
statement
of
the
appellant before the police which is,
firstly, not admissible in evidence and,
secondly, no such disclosure statement
has been exhibited.

Settled law that confession of accused is
inadmissible in evidence and further in absence
of any disclosure statement being exhibited by
the prosecution, no reliance can be placed on
any such confession for proving the motive
behind the commission of the offence.

Indian Evidence Act, 1872- Section 27-
From the two site plans and the recovery
memos two separate places from where
recoveries
were
shown-
from
the
statement of PW-7 (I.O.) both recoveries
were effected from the house of Sapan
Kumar- The witnesses of the recoveries
have
not
been
produced
by
the
prosecution. Rather, they have appeared
as defence witnesses (DW-2 and DW-3)
and have challenged the recovery by
10 All. Saroj Kumar Tiwari Vs. State of U.P.
823
stating that they were made to sign plain
papers.

As the recoveries are not corroborated by the
prosecution witness and witnesses of the
recoveries have been examined by the defence,
hence no reliance can be placed on the
recoveries. (Para 28, 30, 33, 34)

Criminal Appeal allowed. (E-3)

Case Law/Judgements relied upon:-

## Text

_Characters 0–39,943 of 65,737. This is a partial read: ask again with offset=39943 for what follows._

822 INDIAN LAW REPORTS ALLAHABAD SERIES
13.01.2021,
passed
by
the
Director,
Technical Education whereby a fresh panel
was invited, the procedure which followed
thereafter cannot be faulted with.

31. If we consider the aforesaid
argument of Sri Tripathi, we do not find
ourselves in agreement with him for the
reason that the letter of the Director,
Technical Education, dated 13.01.2021 was
only an intermediate step in the process
which culminated in the decision of the
State
Government
finally
taken
on
12.05.2022 whereby the appellant was
nominated as a Chairman of the Committee
of Management.

32. In view of the discussion made
and reasons given above, we are unable to
find ourselves in agreement with the
judgment and order passed by learned
Single Judge, which is under appeal herein.

33. Resultantly, the Special Appeal is
allowed and the judgment and order dated
07.09.2022, passed by learned Single Judge
in Writ-C No. 2957 of 2022 is hereby set
aside.

34. Consequences to follow.

35. There will be no order as to costs.
----------
(2022) 10 ILRA 822
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Criminal Appeal No. 2216 of 2014

Saroj Kumar Tiwari ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Sudhir Kumar Srivastava, Sri Sanjeev
Srivastava, Sri Sushil Kumar Dwivedi

Counsel for the Respondents:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence-The
most fundamental principle of criminal
jurisprudence is that the accused must be
and not merely may be guilty before a
court can convict and the mental distance
between 'may be' and 'must be' is long
and divides vague conjectures from sure
conclusions.

In a case based upon circumstantial evidence it
is incumbent upon the prosecution to connect
the links of the circumstances in a single chain
which must establish the culpability of the
accused.

Indian Evidence Act, 1872- Section 8-
Motive- Whatever motive is shown is in
the
confessional
statement
of
the
appellant before the police which is,
firstly, not admissible in evidence and,
secondly, no such disclosure statement
has been exhibited.

Settled law that confession of accused is
inadmissible in evidence and further in absence
of any disclosure statement being exhibited by
the prosecution, no reliance can be placed on
any such confession for proving the motive
behind the commission of the offence.

Indian Evidence Act, 1872- Section 27-
From the two site plans and the recovery
memos two separate places from where
recoveries
were
shown-
from
the
statement of PW-7 (I.O.) both recoveries
were effected from the house of Sapan
Kumar- The witnesses of the recoveries
have
not
been
produced
by
the
prosecution. Rather, they have appeared
as defence witnesses (DW-2 and DW-3)
and have challenged the recovery by
10 All. Saroj Kumar Tiwari Vs. State of U.P.
823
stating that they were made to sign plain
papers.

As the recoveries are not corroborated by the
prosecution witness and witnesses of the
recoveries have been examined by the defence,
hence no reliance can be placed on the
recoveries. (Para 28, 30, 33, 34)

Criminal Appeal allowed. (E-3)

Case Law/Judgements relied upon:-

1. Vijay Shankar Vs St. of Har., (2015) 12 SCC
644

2. Devi Lal Vs St. of Raj., (2019) 19 SCC 447
(Delivered by Hon'ble Manoj Misra, J. &
Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Sushil Kumar Dwivedi
for the appellant, Sri Amit Sinha, learned
A.G.A., for the State and perused the
record.

2. This appeal is against the judgment
and order dated 13.05.2014 passed by
Sessions Judge, Kaushambi in Sessions
Trial
No.325
of 2003
whereby
the
appellant, namely, Saroj Kumar Tiwari, has
been convicted under Sections 302 and 201
I.P.C.
and
sentenced
as
follows:
imprisonment
for
life
and
fine
of
Rs.10,000/- coupled with a default sentence
of one year additional R.I. under section
302 IPC; and two years R.I. and fine of
Rs.2,000/- coupled with a default sentence
of six months additional imprisonment
under section 201 IPC. However, coaccused, namely, Anju Tiwari and Munni
Devi, were acquitted from the charge of
offences punishable under Sections 302 and
201 IPC.

Introductory facts

3. A written report (Ex.Ka-1) was
lodged by P.W.-1, a village Chowkidar, on
22.05.2000 at 11.30 hrs, at P.S. Saini,
district Kaushambi, giving rise to case
crime no.145 of 2000. It was alleged in the
written report that PW-1 (the informant)
received information from villagers, at
about 10 am, that a dead body of an
unknown person was noticed lying in the
grove of Daya Ram Dhobi near Habbu
Nagar, Dubana; when P.W.-1 went there he
saw that a headless body, without clothes,
was lying under a Mahua tree in that grove.
The chik report (Ex.Ka-5) and G.D. entry
(Ex.Ka-6) thereof was prepared by PW-6.

4. Inquest was conducted at the spot
on 22.05.2000 at 13.55 hrs of which an
inquest report (Ex.Ka-2) was prepared by
S.I. Panna Lal (not examined) which was
proved by P.W.-2 Rajkumar. The condition
in which the body was noticed at the time
of inquest is reported as follows:-

''दशा शव- कसर जाकनब पू० पैर व दकक्षण
बायाों हाथ केहुनी से बाोंये मुड़ा बाोंये सीने पर
दाकहना हाथ दाकहने मुड़ा दाकहनी सीने पर
दाकहनी टाोंग दाकहनी ओर मुड़ा बायाों पैर सीधा
शव बाोंयी करवट नग्न अवस्था में पड़ा है।

हुकलया शव- गदषन से ऊपर का कहस्सा
गायब, गोरा रोंग एकहरा मजबूत कजस्म ऊोंचाई
लगभग 5 1⁄4 फीट उम्र लगभग 25 वर्ष ।

चोट शव- शव को उलट पलट कर देखा
गया, कनम्न चोटें हैं-

(1) गदषन से ऊपर का कहस्सा गायब है (2)
दाकहनी बाजू पर धसा हुआ खून आलूद घाव (3)
कटा हुआ हथेली का घाव (4) बाोंया हाथ ......
खून आलूद (5) वायी हाथ पर कटा हुआ खून
आलूद घाव । ''
824 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Autopsy was conducted on 23.05.2000
at about 5 P.M. by Dr. Yatindra Kumar
Pathak, P.W.-8, who prepared autopsy
report (Ex.Ka-13). In the autopsy report,
following details were mentioned:-

External examination:-

A male body of well built, Rigor
mortis is passed off from whole body,
abdomen is distended. Body is in early
stage of decomposition.

Ante-mortem injuries-

1. Head and neck is separated from
thorax by sharp weapon.

2. A lacerated wound 4 cm.x 2 cm.
Muscle deep in right upper arm.

3. An incised wound 4 cm x 1⁄2 cm in
front of right hand.

4. A lacerated wound in area of 4 cm x
2 cm muscle deep in front of left hand.

5. A lacerated wound 3 cm x 1 cm in
front of top of right shoulder.

6. An incised wound 8 cm x 1⁄2 cm in
size in back of left forearm.

Cause of death:

Shock and haemorrhage due to ante
mortem injuries.

Time since death

About two days

6. During the course of investigation,
the Investigating Officer (I.O.) recovered
slipper of one leg of the deceased red in
colour and light yellow colour watch strap
of which recovery memo (Ex.Ka-3) was
prepared. The I.O also showed recovered of
a semi-circular sickle having wooden
handle measuring six fingers (angul); a
shirt with full sleeves having blue stripes;
and a blue coloured jeans, blood-stained,
on the pointing out of appellant (Saroj
Kumar Tiwari) of which recovery memo
(Ex.Ka-10) was prepared. Investigation of
Case Crime No.145 of 2000 was completed
and chargesheet (Ex.Ka-12) was submitted
by CO, namely, D.P. Shukla, P.W.-7 against
Saroj Kumar Tiwari (appellant), Smt.
Munni Devi and Anju Tiwari under Section
302/201 IPC. After taking cognizance, the
case was committed to the Court of Session
giving rise to S.T. No.325 of 2003. On
17.05.2004, accused persons, namely, Saroj
Kumar Tiwari, Smt. Munni Devi and Anju
Tiwari
were
charged
for
offences
punishable under Section 302/201 IPC. All
of them pleaded not guilty and claimed to
be tried.

7. The trial court examined nine
prosecution witnesses, namely, P.W.-1
Shyam Lal - the informant; P.W.-2
Rajkumar - witness of inquest; P.W.-3
Daya Ram - another witness of the
inquest, P.W.-4 Bhuvneshwar Tiwari -
uncle of the deceased, P.W.-5 Awadh
Kishor Singh - neighbour of the deceased
residing at Patna; P.W.-6 Surya Mani
Pandey - the constable who prepared the
chik report and GD entry of Case Crime
No.145 of 2000; P.W.-7 D.P. Shukla, C.O.
Crime, the Investigating Officer of Case
Crime No.145 of 2000; P.W.-8 Dr.
Yatindra Kumar Pathak who conducted
the
autopsy;
and
P.W.-9
Constable
Ramdev who proved the signatures of S.I.
Panna Lal (since dead) on the inquest
report and papers prepared in connection
therewith for autopsy.

Prosecution Evidence

8. The testimony of above mentioned
prosecution witnesses, in brief, is as under:-
10 All. Saroj Kumar Tiwari Vs. State of U.P.
825

9. P.W.-1- Shyam Lal- Informant:-
He stated that the incident occurred four
years ago. At around 10 a.m., some
villagers told him that a dead body has
been lying beneath a tree in the grove of
Daya Ram Dhobi, he went there and saw a
beheaded dead body of an unknown person,
without clothes, lying there. He gave
information at the police station. He proved
his thumb impression over the written
report which was marked as Ex.Ka-1.

During cross-examination, P.W.-1
stated that he did not carry a written
complaint to the police station. He gave
oral information regarding discovery of
dead body. At the police station, constable
took his thumb impression over Ex.Ka-1.
At the time when he put his thumb
impression, the paper was blank and
nothing was written on it. He arrived at the
police station in between 10-11 a.m. He
stayed at the police station for two hours.
When he was present at the police station,
neither S.I. nor anyone inquired from him
and no statement was recorded. After two
hours when constable permitted him, he
returned from the police station to the place
where the dead body was lying. He again
visited the place of incident at around 1
p.m., at that time, the dead body was not
there and neither police nor any person was
available there. When he saw the dead
body, it was without clothes. Immediately
thereafter, he stated that it had lower undergarment. He also stated that when he
arrived near the dead body, there was no
article lying beside it and there was no
whisper in the village as to whose dead
body it was.

10. P.W.-2 - Rajkumar - witness of
inquest:- He admitted his signature on the
inquest report (Ex. Ka-2) and memo of
recovery (Ex. Ka-3). He reiterated about
noticing a beheaded dead body lying under
a tree in the grove of Daya Ram Dhobi
wearing under-garments (i.e. baniyan and
chaddhi). He stated that S.I. Panna Lal
sealed the dead body and conducted inquest
in his presence. During his presence, S.I.
did not collect any article or earth. There
was no article lying near the dead body,
only blood was spread nearby. He was not
sure whether the blood spread there was
collected by the S.I.

During cross-examination, P.W.-2
stated that he arrived at the spot at about 12
noon. There were many police personnels
available at that place. Members of public
were few. S.I. received his signatures over a
blank paper and informed him that this
paper is for sealing the dead body. S.I. did
not collect any slipper or strap of watch in
his presence and those items were not
noticed by him there. P.W.-2 further stated
that S.I. received his signatures over 3-4
blank papers and nothing was written over
the same.

11. P.W.-3 - Daya Ram - another
witness of the inquest:- In his statement in
chief, he stated that about four or four and
half years ago, a beheaded dead body was
found in his grove. Neither he saw the dead
body nor the S.I. sealed the dead body or
performed inquest in his presence. After
looking at the papers, he denied his thumb
impression thereon. He stated that he is
literate and can sign. On the application of
the prosecution, the witness was declared
hostile and prosecution was allowed to
cross examine him.

During cross-examination by the
prosecution, P.W.-3 stated that with regard
to the incident, S.I. never recorded his
statement. On being confronted with his
statement under Section 161 of the Cr.P.C.,
826 INDIAN LAW REPORTS ALLAHABAD SERIES
he denied having made any such statement.
He also denied the suggestion that he has
colluded with the accused.

12. P.W.-4 - Bhuvneshwar Tiwari -
Uncle of the deceased:- In his examination
in chief, P.W.-4 stated that the deceased
Pranesh Kumar Tiwari is his nephew. At
the time of his murder, his age was near
about 25 years. His nephew was an English
teacher in Anishabad English Convent
School. In the year 1998, his nephew (the
deceased) performed court marriage with
the daughter of Saroj Tiwari (appellant
before
the
court).
Thereafter,
again,
marriage ceremony was performed in a
temple at Patna in the year 2000. That
marriage ceremony was attended by both
sides in a congenial atmosphere and both
sides happily returned to their respective
homes. After that, Pranesh (the deceased)
told his mother that he will go to his
Sasural at Barkhi and shall have Sheetla
Maa Darshan on 21.05.2000. P.W.-4 stated
that he and few others went to Patna
Railway Station to see off the deceased.
After seeing off the deceased they returned
to their respective houses. Whereafter, on
25.05.2000, Lal Bahadur Singh, Police
Station Saini, showed one identity card to
inquire whether that person is known to
PW-4. P.W.-4 acknowledged that it was of
his nephew. The police then informed P.W.-
4 that that person has been murdered within
the jurisdiction of Police Station Saini. The
police personnel thereafter returned. On
getting that information, P.W.-4, Geeta
Devi (mother of Pranesh) and Awadh
Kishor (PW-5) arrived at Police Station
Saini. At the police station, SHO showed
clothes, sickle- the murder weapon, rope,
pant and blood stained clothes and red
slippers along with album. On seeing those
articles P.W.-4 identified them as that of his
nephew. He also recognised a Kada of his
nephew Pranesh Tiwari. PW-4 stated that
Pranesh Kumar Tiwari has been murdered
by Saroj Kumar Tiwari, his wife Munni
Devi and his daughter Anju Devi. After
narrating all that, P.W.-4 stated that before
this marriage, Pranesh Tiwari was married
to another girl who was insane and
handicapped. The family members of that
insane girl did not object to his re-marriage
therefore, Pranesh entered into a second
marriage. P.W.-4 stated that Saroj Tiwari
knew that it was the second marriage of
Pranesh yet it was performed in a most
harmonious atmosphere. P.W.-4 stated that
when his nephew came with his wife and
in-laws on 22nd, he was murdered by them.
A bundle of clothes etc was opened before
the court. Inside that, blue stripe shirt,
blood stained jeans pant, one red colour
slippers and one sickle were kept which
were shown to P.W.-4. He identified the
clothes as that of Pranesh Kumar Tiwari
and the same were made material exhibits.
A second bundle was also de-sealed before
the court wherein two clean pant-shirt were
there. P.W.-4 spotted and identified these
clothes as that of Pranesh and they were
marked material exhibits. Another bundle
opened had a small Khaki colour envelop
with one coin of Re.5 and one coin of Rs.2
with two Rs.1 coins and two coins of 50
paisa. Two separate boxes were also
opened, one was having blood stained earth
and the other box was empty. P.W.-4
proved his signatures on a memorandum
regarding showing of certain articles of the
deceased
for
identification.
The
memorandum was marked as Ex.Ka-4.

During cross-examination, P.W.-4
stated that when he arrived at the police
station, he was shown two bundles. In one
bundle, blood stained clothes, sickle, nylon
rope, slippers and in another bundle, two
pants and two shirts were there. In next
10 All. Saroj Kumar Tiwari Vs. State of U.P.
827
bundle, there was nothing except two
shirts. At that time, these bundles were
sealed. P.W.4 expressed his inability to state
as to how many papers were signed by him.
P.W.-4 also stated in his cross-examination
that when these bundles were shown to him
at the police station, there were no
outsiders except police personnel. The
papers signed by him were not bearing any
other signature except of Awadh Kishor. In
respect of first marriage of Pranesh Kumar,
P.W.-4 stated that he can not tell in which
season the first marriage of Pranesh Kumar
was
solemnised
though
the
second
marriage was performed just 2-4 months
after first marriage. In the year 1998, when
Anju Devi came for the first time after
marriage, she stayed for 15 days in her inlaws house. At that time, the first wife was
not there. She was at her native place. After
1998, Anju Devi never came to stay with
her in-laws. PW-4 stated that his house is
52 kilometres away from Patna in the
village. PW-4's family and Pranesh's entire
family reside in the village. Pranesh use to
reside in a room provided by the institution
where he used to teach. Nobody of PW-4's
family resided with him. Pranesh Kumar
used to visit the village every Sunday. One
brother of PW-4, namely, Brij Nandan
Tiwari was residing in a building of custom
department whereas PW-4 and his family
resided in the village. On 16.05.2000,
Pranesh informed that he would be going to
his in-laws village on 21.05.2000 and had
requested PW-4 and his family to be at the
railway station. On a specific question as to
whether P.W.-4 used to see off Pranesh
whenever he departed, PW-4 stated that it
was not a custom/habit to come to the
railway station to see him off but on
21.05.2000, it was felt necessary to see him
off therefore, they went to the railway
station in the morning at about 5 a.m. P.W.-
4 then clarified that when they reached
Patna Station, Pranesh had met them
outside the station. After meeting Pranesh,
they left. Outside the station, Pranesh was
alone. PW-4 stated that neither he met
Saroj Kumar Tiwari nor he met his wife or
daughter at the railway station.

P.W.-4
stated
that
after
getting
information from the police on 25th
regarding Pranesh's death, they left for
Saini on 29th by Toofan (train) in the
evening and reached Sirathu next day
morning at 5 o'clock. From there they went
straightaway to police station Saini. They
reached Saini police station at about 6.30
a.m. Clothes etc. were shown at nine
o'clock. They remained at the police station
till 11 o'clock. After 11 o'clock they
returned. Between 9 o'clock and 11 o'clock,
PW-4 met the I.O. There, P.W.-4 and
Awadh Kishore signed two or three papers
but Geeta Devi did not sign any paper. The
village where the deceased was married
was known from before but, that day, it was
not considered appropriate to visit the
village. Saroj Kumar used to work in the
Agriculture Department of the government
at Patna.

P.W.-4 denied the suggestions that on
21.5.2000, Pranesh Kumar along with his
father-in-law
Saroj Tiwari,
wife
and
mother-in-law did not leave for Saini; and
that Pranesh Kumar had gone to Fatehpur
alone on 21.5.2000 to attend his friend's
wedding. PW-4 stated that he does not
know whether Saroj Kumar Tiwari had told
Pranesh that after attending the wedding, he
should meet him in the village on
24.5.2000. P.W.-4 denied the suggestion
that Saroj Kumar Tiwari remained at Patna
on 22.05.2000 and did government work in
his office at Patna on 22-5-2000. PW-4
stated that he does not know that when
Saroj Kumar Tiwari reached his village on
828 INDIAN LAW REPORTS ALLAHABAD SERIES
24th, the police arrested him. PW-4 denied
the suggestion that the clothes shown in the
bundle were the clothes brought by the
police personnel, who came to inform PW4 at Patna, from the village house to show a
false
recovery.
He
also
denied
the
suggestion that Pranesh Kumar was killed
and robbed by unknown miscreants while
he was returning alone to his in-laws' house
after attending the wedding. P.W.-4 also
denied the suggestion that Saroj Kumar
Tiwari did not commit murder of Pranesh
but was implicated on the basis of
suspicion. He also denied the suggestion
that Pranesh did not marry anyone other
than Anju Devi.

13. P.W.-5 - Awadh Kishor Singh -
Neighbour of the deceased residing at
Patna- He stated he knows Pranesh Kumar
Tiwari who was a resident of his village
and a teacher at Girdhar Niwas Patna; he
had married a mentally retarded girl in the
year 1995 but, on the basis of mutual
understanding and panchayat, that marriage
was dissolved. PW-5 had heard that
Pranesh had a second marriage. The second
marriage was solemnized in Patan Mandir
at Patna with the daughter of Saroj Kumar
Tiwari. Saroj Tiwari was a resident of
Kaushambi district in U.P. After few days
of marriage, it came to his knowledge on
20.5.2000 that Pranesh was going to his inlaws place at village Happu Nagar, P.S.
Saini, district Kaushambi. Pranesh Tiwari
was dropped at Patna Junction by his uncle
and his mother. PW-5 himself did not
witness it, but Pranesh's uncle told him that
Pranesh's father-in-law Saroj Tiwari and
Saroj Tiwari's wife and their daughter were
there. On 25.05.2000, UP Police arrived
and showed some photo identity cards and
asked him whether they knew that person.
PW-5 was also told that he has been
murdered. Thereafter, Bhuvneshwar Tiwari
and PW-5 left Patna on 29.05.2000 and
they reached Saini Police station on
30.05.2000. After reaching the police
station, the Inspector showed them some
articles i.e. clothes, rope, slipper, sickle
(hansiya) and inquired whether they could
recognise those articles. Pranesh was seen
wearing one of those clothes few days ago.

During cross-examination, P.W.-5
stated that he is a teacher at Barh. At the
time of occurrence, he was working as a
teacher. The distance between Barh and
Patna is around 64 KM. There is a railway
station at Barh. The distance of Barh to
Rana Bigha is 4 KM. There is a metalled
road from Barh to Rana Bigha. Twice a
week, PW-5 used to visit Patna. He did not
know in which school Pranesh Kumar
Tiwari was a teacher. He also did not know
as to in which house in Patna he used to
live.

P.W.-5 further stated that he never saw
Saroj Tiwari in Patna. He stated that he has
not seen Saroj Tiwari till date. PW-5 stated
that first marriage of Pranesh Tiwari was
solemnised after his consent. Four years
after the first marriage, the second marriage
of Pranesh Tiwari was solemnised. PW-5
did not participate in the second marriage
of Pranesh Kumar. But he had heard that
the second marriage was solemnised at
Patan temple in Patna.

He further stated that Bhuvaneshwar
Tiwari and he left for U.P. by Toofan
Express. They reached Sirathu Railway
Station next day at 4-5 am. They reached
PS Saini by about 7-8 am. There, the subinspector recorded his statement as also of
Bhuvaneshwar
Tiwari.
In
respect
of
Pranesh Kumar's second marriage, PW-5
stated that it was solemnized after three
years of the first marriage; that he does not
10 All. Saroj Kumar Tiwari Vs. State of U.P.
829
remember whether Pranesh Kumar's second
wife ever visited the village; that he neither
saw nor heard of second wife of Pranesh
visiting
the
village.
He
denied
the
suggestions (a) that he never visited the
police station Saini to see the articles; (b)
that the constable who had visited his
village
had
obtained
Bhuvaneshwar
Tiwari's and his signature on a blank paper;
(c) that no articles were shown to him at PS
Saini; and (d) that whatever statement he
has given before the court has been tutored
by
government
advocate
Shri
T.C.
Kesarwani.

14. P.W.-6 - Suryamani Pandey -
Chik maker- He proved the registration of
the FIR, preparation of the Chik Report and
GD
Entry
thereof
.
During
crossexamination, he stated that the complainant
had come alone to the police station to
lodge the report. He had brought a scribed
report though he did not mention as to who
scribed it. The S.H.O. was not present at
the time of registration of the FIR. The
original chik was sent to the C.O. Office on
the next day.

15. P.W.-7- D.P. Shukla- Investigating
Officer- He stated that on 22.05.2000, he
was posted as the Inspector-in-charge, P S
Saini. On that day, Case Crime No.-
145/2000
u/s.
302,
201
I.P.C.
was
registered at the police-station on the basis
of written complaint made by PW-1. On
22.05.2000, he prepared C.D. and took
copy of the chik, copy of the report,
recorded statement of the complainant,
statement of the witnesses of the inquest
report and tried to identify the dead body.
After preparing the inquest report, he lifted
one slipper, strap of watch and blood
stained earth from the spot. On 24.05.2000
he arrested the accused persons i.e. Saroj
Kumar Tiwari, Smt. Munni Tiwari and
Anju Tiwari on the basis of information
received from an informer. After their arrest
they confessed their guilt and disclosed the
name of the deceased as Pranesh Kumar s/o
Late Chandra Bhushan Tiwari r/o Rana
Beegha, P.S. Barh, district-Patna, Bihar.
PW-7 also got the murder weapon i.e. the
sickle (blood stained) recovered at the
instance of Saroj Tiwari from the house of
his Behnoi (brother in law) Sapan Kumar.
It was hidden in a haystick kept in a room.
He also recovered blood-stained clothes of
the deceased, suitcase and railway ticket
from the same room and recovery-memo of
these articles were prepared. On 22.5.2000,
the inspection of the scene of occurrence
was carried out at the instance of the
complainant and site-plan was prepared,
which was marked as Ext.Ka-7. He also
prepared site plans of the place from where
he recovered murder-weapon sickle and
nylon rope and clothes of deceased Pranesh
Kumar, which were marked Ex. Ka-8 and
Ex. Ka-9. Recovery-memo of the murderweapon and blood stained clothes was
proved by him as Ext.Ka-10 and recoverymemo of nylon rope and other clothes was
proved as Ext.Ka-11. PW-7 stated that
medical examination of accused Saroj
Tivari was got done; that the medical-report
is attached with CD. On 27.5.2000, Lal
Bahadur Singh was sent with appropriate
direction to inform family of the deceased
Pranesh
Kumar
Tiwari
and
collect
evidence. On 30.5.2000, statement of the
constable who was sent to inform the
family of the deceased and show photos
was
recorded.
The
details
of
the
information received from him was entered
in the case-diary and statements of the
other witnesses were recorded. Statements
of Shri Bhuwaneshwar Tivari, Smt. Geeta
Devi, Awadh Kishor and others were
recorded. On 2.6.2000, C.D. No.5 was
prepared in which details of original P.M.
830 INDIAN LAW REPORTS ALLAHABAD SERIES
report and inquest-report were mentioned.
Statements of Dr. Awasthi P.H.C. Sirathu
and Constable Narendra were recorded and
materials were dispatched to Forensic Lab
Lucknow for examination. Whereafter,
charge-sheet was filed against the accused
persons after investigation. Charge-sheet
was marked as Ext.Ka-12.

During cross-examination, he stated
that he arrested the accused on 24.05.2000
on the basis of tip given by an informer. He
further stated that witness Jainul had
informed that it was a matter of discussion
in the village that Saroj Tewari, his wife,
daughter and son-in-law had come from
Saini to Daranagar by Tempo in the
evening and after getting off, they walked
on foot and that the dead body is of their
son-in-law. The witness Jainul had also
stated that on 21.5.2000, at 8.00 p.m., he
saw Saroj Tewari, his wife, daughter and a
boy aged around 25 years getting off the
tempo at Daranagar and going on foot to
their house. PW-7 however admitted that he
has not made Jainul a witness in the case.
PW-7 stated that witnesses had disclosed to
him that the accused had come to attend
thirteenth day rituals and that they have
murdered their son-in-law. On the basis of
this information, he arrested the accused
and collected evidence. PW-7 stated that
during investigation, he recorded statement
of Gaya Ram, Ram Naresh Tripathi,
Dwarika Prasad and the village Pradhan
Mayawati on 22.5.2000. These witnesses
also stated about discussion in the village
that the accused have murdered their sonin-law. On the basis of this information, the
accused were arrested for interrogation and
the weapon of murder was recovered. He
proved various seizure memos but admitted
that the recovered material is not before
him in the court. He denied the suggestion
that he did not recover weapon of murder
on the pointing out of the accused. He
denied the suggestion that he managed to
bring the clothes by sending a constable to
show a false recovery. He also denied the
suggestion that he has purposely not
mentioned names of public witnesses of the
recovery memo in the charge-sheet. PW-7
stated that he does not remember whether
any identity card of the deceased was found
or not. Then he stated that no identity card
of the deceased was found. Rather,
photographs of the deceased were sent to
his home through the constable.

PW-7 denied the suggestions (a) that
entire investigation was bogus and a false
charge-sheet has been submitted; (b) that
the recoveries have been fabricated; and (c)
that all the parchas have been fabricated
while sitting at the police station and the
papers have been back dated.

16. P.W.-8 - Dr. Yatindra Kumar
Pathak - Autopsy Surgeon - He proved the
autopsy report details of which we have
noticed above. In respect of the internal
examination, he stated that there was no
semi-digested food in the stomach; the
stomach was empty; small intestine was
half-filled and large intestine too was semifilled. There was no mark of circumcision
on penis. The death could have occurred on
21.05.2000 at 9:30 pm.

During cross-examination, he stated
that he received the dead body on
23.05.2000 at 1:10 pm in the mortuary.
Documents relating to inquest report were
received. The dead body was received as
unknown. He did not get videography of
the postmortem examination. He noticed
two incised wounds on the body of the
deceased. Those could be caused by a
knife. Head of the deceased was severed
off. This may be caused with a heavy and
10 All. Saroj Kumar Tiwari Vs. State of U.P.
831
sharp cutting weapon such as farsa and
gandasa. It is not possible to cause it with a
sickle used for cutting the grass. The body
had started decomposing. The injury might
be 2 1⁄2 days old but not 3 days. It is likely
to be of the morning of 21.05.2000. No
semi-digested food was found in the
stomach. It is wrong to state that he
prepared the postmortem report at the
instance of his subordinate.

17. P.W. -9 - Ramdev - Constable -
He proved the signature of S.I. Panna Lal
on the inquest report and other papers
relating to dispatch of the body for autopsy.

18. It be noted that during the
pendency of the trial a serologist report
dated
13.09.2000
(Ex.
Ka-19)
was
produced as per which, 8 articles were sent
for determining presence/ absence of
human blood. These were: (1) bloodstained earth; (2) plain earth; (3) Chappal
(slipper); (4) watch strap; (5) Coins; (6)
piece of cloth; (7) shirt; (8) Jeans pant; (9)
Hansiya / sickle with butt. Except coin,
blood was found on each article. In piece of
cloth and shirt, human blood was found. In
rest of the articles blood had disintegrated
therefore,
its
origin
could
not
be
ascertained. With respect to the articles
where blood of human origin could be
found, the blood group could not be
ascertained as sample was found unfit for
such test.

Statement under section 313 CrPC

19. The incriminating circumstances
appearing in the prosecution evidence were
put to Saroj Kumar Tiwari and his
statement under Section 313 Cr.P.C. was
recorded on 09.05.2013, 25.11.2013 and
15.04.2014. In his statement made on
09.05.2013, the appellant admitted that his
daughter Anju had married Pranesh Kumar
but denied the remaining allegations. The
fact of recovery of blood-stained earth;
weapon of assault, nylon rope and site
plans prepared in respect thereof were put
vide question no.8. The appellant denied
those recoveries and claimed that they are
totally fabricated; no recovery was made at
his pointing out. On being questioned as to
why he has been implicated, he stated that
he has been implicated only on the basis of
suspicion. In response to the question as to
what he has to say, appellant stated that at
the time of the incident he was working as
a
store
assistant
in
the Agriculture
Department at Patna. On 21.5.2000 he was
on duty. His son-in-law Pranesh, on
21.05.2000 left Patna to go to Fatehpur to
attend marriage of his friend. Appellant did
not accompany him. When appellant came
home on 23.05.2000, police arrested him.
On 25.11.2013, the forensic report Ex. Ka19 was put to him. In response to which,
the appellant stated that he has nothing to
say. On 15.04.2014 when another statement
under section 313 CrPC was recorded, he
reiterated what he had stated earlier and
also claimed that the forensic report is not
admissible.

Defence Evidence

20. After the statement under Section
313 Cr.P.C. of the appellant was recorded,
four defence witnesses, namely, Jainul
Abdeen - D.W.-1; Jabar Ali - D.W.-2;
Sapan Kumar Mishra - D.W.-3; and Awadh
Kishor Sharma - D.W.-4, were examined.
Their testimony in brief is noticed below.

21. D.W.-1- Jainul Abdin - Note:
This witness according to I.O. had
informed the I.O. that the deceased had
come with the appellant and the other
co-accused
and
they
were
noticed
832 INDIAN LAW REPORTS ALLAHABAD SERIES
alighting together from a Tempo. D.W-1
stated that he is acquainted with Saroj
Tiwari of Habbu Nagar for last 20-25 years.
The distance of Saroj Tiwari's village is 31⁄4
km from his village. He never met children
of Saroj Tiwari, nor he knows about them.
They do not live here. They have been
living in Patna for 30-35 years. He stated
that neither 12-13 years ago nor ever, he
saw Saroj Tiwari and his children going to
their home after getting off from the tempo
at Daranagar; neither he has knowledge
about recovery of the dead body from an
orchard in the village of Saroj Tiwari nor
he heard that the dead body was of Saroj
Tiwari's son-in-law. He stated that he has
been Block Pramukh from 1988 to 1994
and from 2000 to 2005. The villagers had
told him that Saroj Tiwari has been
arrested. He stated that no police officer
recorded his statement nor had interrogated
him regarding the case in which Saroj
Tiwari was arrested.

During cross-examination, D.W-1
stated that he has not received any summon
or notice from the court for recording his
statement; that he is deposing at the request
of Saroj Kumar Tiwari; that he is unaware
about the murder of Pranesh; and he is also
unaware that 13 years ago, a dead body was
found lying in the grove of Daya Ram.
D.W.-1 also stated that he does not know
Anju Tiwari daughter of Saroj Tiwari; he is
not aware about the marriage of Anju
Tiwari; and that he was never ever
interrogated by the police of police station
Saini. Note: DW-1 was not confronted with
any of his statement recorded under Section
161 Cr.P.C.

22. D.W.-2 Zabar Ali - Note: He is a
witness of the seizure memos (Ex. Ka-10
and Ka-11) of weapon of assault, blood
stained shirt and trouser, clothes etc. He
stated that he knows Saroj Tiwari who is of
his own village; Saroj Tiwari had been
residing at Patna for last 32 to 35 years; but
used to visit his village where he has his
own house and land; 13 years ago, he heard
that a beheaded dead body was found in a
grove of his village, he never went there; he
did not have information as to whose body
it was; it was not heard by D.W.-1 that the
dead body was of the son-in-law of Saroj
Tiwari. He denied that Saroj Tiwari handed
over the blood stained sickle and blood
stained clothes such as pant and shirt, nylon
rope to the police. The police never went to
the house of Saroj Tiwari along with him.
D.W.-1, however, accepted his signatures
on Ex.Ka-10 and Ex.Ka-11. But stated that
his signatures over the Ex.Ka-10 and
Ex.Ka-11, were obtained by I.O. in front of
the house of the Principal and when he
inquired about that, the police personnel
informed that nothing is serious and,
therefore, he signed the papers. D.W.-2 also
stated that he had informed the IO that he is
not a literate person but on insistence of the
IO, he had put his signatures over the
papers which, at the time of making
signatures were blank. D.W.-2 also stated
that he was never interrogated and his
statement was never recorded to confirm
the recovery.

During cross-examination, D.W.-2
stated that he has not received any summon
from the court and that he has given his
statement on the request of Saroj Tiwari.
He stated that he does not know about the
marriage of Anju Tiwari, daughter of Saroj
Tiwari. D.W.-2 stated that he does not
know anything about the beheaded body
found in the grove of Daya Ram. He stated
that he had put his signatures over 2 or 3
blank papers. At that time, neither there
was a sickle nor pant or shirt or anything
there. D.W.-2 stated that as and when Saroj
10 All. Saroj Kumar Tiwari Vs. State of U.P.
833
Tiwari visited the village they used to
formally greet each other. He denied the
suggestion that being a resident of the same
village, he is making his statement to save
Saroj Tiwari.

23. D.W.-3 - Sapan Kumar Mishra -
Note: He is another witness of the seizure
memos (Ex. Ka-10 and Ka-11) of weapon
of assault, blood stained shirt and
trouser, clothes etc. He stated that Saroj
Kumar Tiwari is his mama (maternal uncle)
who has his own house in DW-3's village
though, he had been working in Patna for
last many years and living there with
family. He stated that on 24.05.2000, it was
death anniversary of his father. Saroj Tiwari
along with his family, had come on
23.05.2000 from Patna. The Police arrested
him from his home that very night, and
took him to the police-station. Neither
Saroj Tiwari nor his family members had
taken out or handed over blood stained
sickle, blood stained clothes and nylon
rope. Next day, the I.O. and Police had
come to DW-3's house and asked him to
put signatures on two blank papers. When
he refused to sign on blank paper, they
threatened him to put him in jail. Then he
put his signature on both papers i.e. Ex Ka10 and Ex Ka-11. When he had put his
signature, there was nothing written on it.
The I.O had not recorded his statement.

During
cross-examination,
DW-3
stated
that
he
had
not
received
notice/summon from the court for giving
his testimony. He came at the request of his
uncle i.e. accused-appellant. Nothing much
could come out from his cross-examination
except that his mama had come from Patna
along with his family on 23.05.2000 on
DW-3's father's death anniversary and the
Police had arrested Saroj Tiwari, Munni
Devi and Manju in the night of 23.05.2000;
and that a dead body without head was
recovered from the orchard of Dayaram
near Dubna village. He did not know
whose dead body it was. Anju's marriage
had been solemnized, as was told by his
mama. He denied the suggestion that while
putting signature on the papers i.e. Ex.Ka10 and Ka-11, they were written. He
admitted that in addition to his signature,
signature of Jabar Ali was also obtained on
those papers. He denied the suggestion that
he was giving false statement to defend
Saroj Tiwari i.e. his mama.

24. D.W.-4- Awadh Kishor Sharma -
DW-4 stated that Saroj Kumar Tiwari has
been working as a store assistant in Bihar
State with Agro Industries Development
Corporation Ltd. in its base work Shop at
Patliputra, Patna since 01.01.77 and is to
retire in June, 2015. DW-4 stated that he
had been posted as an Administrative
Officer there and he retired from there in
July 2010 and now, he is working on
contract in the same corporation. DW-4
stated that S.K. Tiwari had worked on
22.05.2000 at Patliputra and was on earned
leave from 23.05.2000 to 15.07.2000 and
joined his duties on 17.07.2000.