# Shiv Kishore Tiwari @ Rajju Tiwari (In Jail) v. State of U.P

- **Citation:** (2022) 11 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-04
- **Case number:** Criminal Appeal No. 6577 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kishore-tiwari-rajju-tiwari-in-jail-v-state-of-u-p-47805
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 313 - Indian Penal
Code, 1860 - Section - 302- Criminal Appeal
- Conviction & Sentence - Life imprisonment
with fine - Evaluation of evidences - offence of
murder - FIR - informant alleged that accused
were calling names & abusing standing at the
door of his house, when the family of the
informant trying to stop him by abusing accused
started abusing from his courtyard and triggered
two fire from his gun in hand out of which one
fire was fit the uncle of the informant, resulted
the uncle was died on the spot - distinction
between 'murder' and 'culpable homicide'- trial
court fallen into grave error believing the
testimonies of PWs whom are not the eyewitnesses and there are several material
contradiction in their testimony - the report of
ballistic expert is not in favour of the
prosecution - held, death was homicidal death
but prosecution has failed to proved the charges
against the accused beyond reasonable doubt -
224 INDIAN LAW REPORTS ALLAHABAD SERIES
thus, appellant deserves to grant benefit of
doubt - appeal allowed - direction accordingly.
(Para - 16, 17)

Appeal allowed. (E-11)

## Text

11 All. Shiv Kishore Tiwari @ Rajju Tiwari Vs. State of U.P.
223
Chhattisgarh, (2021) 2 Supreme Court
Cases 365 where the facts were similar to
this case, the Apex Court has allowed the
appeal of the accused appellant. The decision
of the Apex Court in the case of Anversinh
v. State of Gujarat, (2021) 3 SCC 12 which
was related to kidnapping from legal
guardian, wherein it was established that the
Court while respecting the concerns of both
society and victim, propounded that the twin
principle of deterrence and correction would
be served by reducing the period of
incarceration already undergone by the
accused. In our case, this is not that gruesome
murder where the accused cannot be dealt
with in light of all these judgments.
Judgments in Pravat Chandra Mohanty v.
State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of the
accused.

45. In view of the aforesaid discussions,
we are of the view that appeal is liable be
partly allowed and the conviction of the
appellant under Section 302 IPC is liable to
be converted into conviction under Section
304 (Part-I) IPC.

46. Accordingly, appeal is partly
allowed and the appellant is convicted for the
offence under Section 304 (Part-I) IPC and is
sentenced
to
undergo
ten
years
of
incarceration with remission. We maintain
the fine amount and default sentence, which
will start if fine is not deposited after ten
years with remission.

47. Record and proceedings be sent
back to the Court below forthwith.

48. This Court is thankful to learned
Advocates and Mr. Mohd. Furkan Khan, Law
Clerk (Trainee) of this Court for ably
assisting the Court.
----------
(2022) 11 ILRA 223
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6577 of 2008

Shiv Kishore Tiwari @ Rajju Tiwari
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Vikas Tiwari, Sri Abhay Kumar Singh, Sri
I K Chaturvedi, Sri Mahesh Prasad Yadav,
Sri P.K. Shukla, Sri R.K. Pandey, Sri
Shailesh Pandey, Sri V.B. Rao, Sri Kamta
Prasad

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 313 - Indian Penal
Code, 1860 - Section - 302- Criminal Appeal
- Conviction & Sentence - Life imprisonment
with fine - Evaluation of evidences - offence of
murder - FIR - informant alleged that accused
were calling names & abusing standing at the
door of his house, when the family of the
informant trying to stop him by abusing accused
started abusing from his courtyard and triggered
two fire from his gun in hand out of which one
fire was fit the uncle of the informant, resulted
the uncle was died on the spot - distinction
between 'murder' and 'culpable homicide'- trial
court fallen into grave error believing the
testimonies of PWs whom are not the eyewitnesses and there are several material
contradiction in their testimony - the report of
ballistic expert is not in favour of the
prosecution - held, death was homicidal death
but prosecution has failed to proved the charges
against the accused beyond reasonable doubt -
224 INDIAN LAW REPORTS ALLAHABAD SERIES
thus, appellant deserves to grant benefit of
doubt - appeal allowed - direction accordingly.
(Para - 16, 17)

Appeal allowed. (E-11)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgment and order dated
11.09.2008, passed by the learned Sessions
Judge, Hamirpur, in Session Trail No.158
of 2002 State vs. Shiv Kishore Tiwari @
Rajju Tiwari arising out of Case Crime
No.62 of 2002 under Section 302 IPC,
Police
Station-
Maudaha,
District-
Hamirpur,
whereby
the
appelant
is
convicted and sentenced for the offence
under
Section
302
IPC
for
life
imprisonment with a fine of Rs.10,000/-
and in defalut of payment of fine, further
R.I. for one year.

2. The brief facts of the case as culled
out from the record are that a written report
was submitted on 01.04.2002 by informant
Ashok Kumar Tiwari at Police Station-
Maudaha, District- Hamirpur with the
averment that on 31.03.2002 at about 9:30
pm the neighbour of the informant Shiv
Kishore @ Rajju son of Swamidin Tiwari
was calling names and abusing standing at
the door of his house. Vedmani Diwedi, his
mother Smt. Sushila Diwedi and Ashutosh
Diwedi told him not to abuse and asked to
go inside the house. On this, Rajju went
inside the house but after some time he
again started abusing from his courtyard.
On this informant, his mother Smt. Meera
Devi and wife Suman Lata went on the roof
of their house where bulb was lighting. At
that point of time, Rajju triggered one fire
from the courtyard with the gun in his
hand. The uncle of the informant Shri
Krishan Kumar @ Munni aged about 35
years was sleeping on his roof, he wake up
and asked Rajju not to abuse and fire.
Grandmother of the informant Smt. Shiv
Kali who used to reside with aforesaid
Munni was also standing there. When uncle
of informant Shri Krishan Kumar stopped
Rajju from abusing, Rajju went on Atari
and triggered fire from there which hit the
right temple of Krishan Kumar @ Munni
who fell down and died on the spot.

3. On the basis of above report, a
criminal case was registered at Police
Station- Maudaha, District- Hamirpur as
Crime No.62 of 2002, under Section 302
IPC and investigation was started. During
the course of investigation, the I.O.
recorded the statements of witnesses u/s
161 Cr.P.C., visted the spot and prepared
site-plan. At the time of visiting the spot,
I.O. found one empty cartridge from the
place of occurrence and its recovery memo
was prepared. I.O. also collected blood
stained and plain earth from the spot. The
inquest proceedings were conducted and
inquest report was prepared. The dead body
of the deceased was sent for post mortem,
where post mortem was conducted by the
doctor and post mortem report has
prepared.
During
the
course
of
investigation,
accused-appellant
Shiv
Kishore @ Rajju Tiwari was arrested and
on his pointing out a single barrel gun was
recovered from his house. Its recovery
memo was also prepared. Recovered gun
and empty cartridge were sent to Forensic
Science Laboratory for seeking the report.
The aforesaid report was received.

4. After completion of investigation,
investigating officer submitted charge sheet
against the appellant- Shiv Kishore @
Rajju Tiwari under Section 302 IPC.

5. The case, being triable exclusively
by the Court of Sessions, was committed
11 All. Shiv Kishore Tiwari @ Rajju Tiwari Vs. State of U.P.
225
by Magistrate to Court of Sessions.
Learned trial court framed charge against
the appellant under Section 302 of IPC.
The appellant denied the charge and
claimed to be tried.

6. Prosecution examined following
witnesses:

1.
Ashok
Kumar
Tiwari
PW1
2.
Smt. Meera Devi
PW2
3.
Dr. Pushkar Anand
PW3
4.
Ram Autar Yadav
PW4
5.
Ram
Prakash
Bajpey
PW5

7. Apart from aforesaid witnesses,
prosecution
submitted
following
documentary evidence, which was proved
by leading the evidence:

1.
FIR
Ex.ka.3
2.
Written Report
Ex.ka.1
3.
Recovery Memo
of
Empty
Cartridge
Ex.ka.11
4.
Recovery Memo
of Blood Stained
&
Plain
SandCement
Ex.ka.12
5.
Recovery memo
of cot, mattress,
quilt,
mosquito
net and bamboo
sticks
Ex.ka.13
6.
Recovery memo
of gun
Ex.ka.14
7.
P.M. Report
Ex.ka.2
8.
Report of Vidhi
Vigyan
Proyogshala
Ex.ka.17
9.
Report of Vidhi
Vigyan
Ex.ka.18
Proyogshala
10. Panchayatnama
Ex.ka.5
11. Charge sheet
Ex.ka.16
12. Site
plan
with
Index
Ex.ka.10
13. Site
plan
with
Index
Ex.ka.15

8. After completing the prosecution
evidence, statement of appellant was
recorded u/s 313 Cr.P.C., in which he
denied the evidence against him and said
that there was family dispute regarding
partition. Hence, he was falsely implicated
by the informant. No evidence was adduced
by the appellant in his defense. After
hearing arguments of both sides the learned
Sessions Judge convicted the appellant u/s
302 of IPC and sentenced for life
imprisonment and fine for Rs.10,000/-.
Hence, this appeal.

9. Heard learned counsel for the
appellant, Shri Vikas Goswami, learned
AGA appearing on behalf of the State and
perused the record.

10. Learned counsel for the appellant
submitted that impugned judgement is
absolutely illegal and arbitrary. Prosecution
has failed to prove the charge beyond
reasonable doubt. It is further submitted
that the FIR was lodged on the next day of
the occurrence and the delay is not
explained by the prosecution witnesses.
PW1 and PW2 are the only two witnesses
of fact, who are interested witnesses. No
independent witness is produced by the
prosecution. PW1 and PW2 are not eyewitnesses. As per their evidence, they
reached to the place of occurrence after
sometimes of the incident. Moreover, the
place from where they said to witness the
occurrence is the roof, while as per the
prosecution evidence, accused fired from
226 INDIAN LAW REPORTS ALLAHABAD SERIES
his courtyard and since there are high walls
around the roof, it was not possible from
there to witness the courtyard of the house
of the accused.

11. Learned counsel for the appellant
next submitted that there is no motive
because it is not mentioned in the first
information report to whom the accused
was abusing and further the witnesses of
fact have deposed that he was not abusing
to any particular person. Hence, there was
no reason for him to kill the deceased when
even he was not abusing him. Learned
counsel pointed out that as per the
averment of first information report, the
occurrence took place at 9:30 pm while
PW1, who himself is the informant, has
deposed
in
examination-in-chief
that
occurrence took place at 7:00 pm. Hence,
there is material contradiction between the
timing of alleged incident.

12. It is vehemently submitted by
learned counsel for the appellant that a gun
is said to be recovered from the house of
the appellant on his pointing out and one
empty cartridge was recovered from the
spot. Gun and cartridge were sent to
Forensic Science Laboratory from where
the report was received and this report says
that recovered empty cartridge was not
fired by the said gun. Hence, entire
prosecution case is shattered. Appellant has
been falsely implicated due to previous
enmity between the parties on account of
family partition. Learned trial Judge has not
appreciated the evidence as per legal
principles and misread the evidence on
record.
The
appellant
was
wrongly
convicted and sentenced. Hence, the appeal
be allowed.

13. Learned AGA opposed the
submissions made by learned counsel for
the appellant and contended that PW1 and
PW2 reside in the neighbourhood of the
appellant. Hence, their presence on the spot
cannot be doubted. Both these witnesses
are eye-witnesses and have supported the
prosecution case in their testimony. With
regard to the report of Forensic Science
Laboratory, learned AGA submitted that
ocular evidence shall be given preference
to the report of the ballistic expert. The gun
was recovered from inside the house of the
appellant on his pointing out. It is next
submitted by learned AGA that ante
mortem injury in post mortem was
corroborated the prosecution version. As
per
prosecution
witnesses,
fire
was
triggered from the distance of 2-21⁄2 feet
and blackening and tattooing was present
around
entry
wound,
which
also
corroborates
the
testimony
of
eyewitnesses. Hence, the learned trial Judge
has rightly convicted and sentenced the
appellant and there is no illegality or
infirmity in the impugned judgement,
which requires any interference by this
Court.

14. Learned counsel for the appellant
has raised the issue of delay in lodging the
FIR. The occurrence is said to have taken
place at 9:30 pm on 31.03.2002 and first
information report was lodged on the next
day at 10:00 am while the distance to the
police station from the place of occurrence
was 9 kms. Although, the informant has
stated in his testimony as PW1 that due to
fear of the appellant and want of means of
travelling at night, the FIR could not be
lodged just after the occurrence. Delay in
lodging the FIR in every case is not fatal to
the prosecution case. It shall be analysed
along with other evidence on record. It is
relevant to note that time of occurrence is
specifically told in FIR, which is 9:30 pm
while the informant Ashok Kumar Tiwari
11 All. Shiv Kishore Tiwari @ Rajju Tiwari Vs. State of U.P.
227
has deposed in his cross-examination as
PW1 that the occurrence took place at 7:00
pm. There is much difference between 7:00
pm and 9:30 pm. This is material
contradiction
in
fixing
the
time
of
occurrence.

15. The prosecution has produced two
witnesses of fact, namely, PW1 Ashok
Kumar Tiwari and PW2 Smt. Meera Devi.
Both are said to be eye-witness and they
are son and mother respectively. PW2
Meera Devi has categorically deposed in
her cross-examination that "मै फायर लगिे के
तुरिंत १० क्षमिट बाद गयी थी, मेरे साथ अशोक लड़का
गया था तथा पड़ोस के तमाम लोग आ गए थे". It is
important to note that she has stated that
she went to the spot after 10 minutes of the
occurrence and her son Ashok was also
with her. This Ashok is PW1. Hence, it can
be safely held that PW1 and PW2 both
reached to the spot after 10 minutes of the
occurrence. Hence, they both are not eyewitnesses. This above statements of PW2 is
also confirmed by the testimony of PW1
Ashok Kumar, who states in his crossexamination that he went to the dead body
of his uncle after 15-20 minutes of fire
because for reaching to the spot, firstly he
had to come out from main door of his
house and then entered the house of the
deceased from his main door. It is also
stated by him that he did not go alone.
When other people came there, he went
near the dead body with them. It is
admitted fact that the PW1 and deceased
were neighbours. Hence, it cannot be
believed that it would take 15-20 minutes
to reach the house of adjoining neighbour.
This statement of PW1 also suggests that
he did not witness the occurrence as stated
by her mother PW2 Meera Devi. Learned
trial Judge does not appreciate this
evidence in right perspective. In our
considered opinion, PW1 and PW2 are not
eye-witnesses and no other witness of fact
is produced by the prosecution.

16. As per prosecution case, there
were two fires by the appellant, but only
one empty cartridge was recovered from
the spot. Learned AGA has contended that
the second empty cartridge is fallen on the
ground if it is taken out from the barrel. In
this regard, in our opinion, if second
cartridge was not taken out from the barrel
then it could have been found in the barrel
when gun was recovered but as per
recovery memo no empty cartridge was
found in the barrel of the gun. Besides it,
ballistic report is very much relevant in this
case. As per prosecution case, the empty
cartridge, which was found on the spot and
the gun which was recovered from the
house of the appellant were sent to Forensic
Science Laboratory for having ballistic
report. Such report is received by the court,
in which ballistic expert has stated that
empty cartridge was not fired by the
recovered gun. Hence, it is crystal clear that
the recovered empty cartridge was not fired
from the gun, which is said to be recovered
at the pointing out of the accused. On this
score, the prosecution case is shattered and
in this way clinching evidence is in favour
of the accused. Learned trial Judge has
opined that there was no contradiction
between the evidence of PW1 and PW2.
While, as discussed above, there are several
material contradictions in their evidence,
which go to the root of the case. Though
both are proved not to be the eye-witness of
the occurrence. Report of ballistic expert is
not in favour of the prosecution. Hence, we
are unable to subscribe the finding of the
fact that fire was triggered by the accusedappellant to do away with the deceased. In
criminal jurisprudence prosecution has to
prove the guilt of the accused beyond all
reasonable doubt, which is not done in this
228 INDIAN LAW REPORTS ALLAHABAD SERIES
case. Though, we have held that death was
homicidal death but prosecution has failed
to prove the charge against the accused
beyond reasonable doubt and benefit of
doubt is granted to the appellant. Hence,
appeal is liable to the allowed.

17. Accordingly, the appeal is
allowed.

18. Accused-appellant is acquitted of
the charge framed against him u/s 302 of
IPC. The fine of amount be refunded if it is
already deposited by the appellant.

19. The accused-appellant be released
from jail forthwith if not wanted in any
other case.

20. Record and proceedings be sent
back to the court below.
----------
(2022) 11 ILRA 228
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 7777 of 2017

Balveer Singh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Noor Muhammad, Sri Tribhal Chandra
Sharma, Sri Yogesh Kumar Srivastava

Counsel for the Opposite Party:
G.A.
Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal
Code,1860
- Sections 34, 299, 300,
300(4), 302, 304 Part -I, 304 Part - II,
304-B, 307, 498-A, 504 & 506 - The Dowry
Prohibition Act, 1961 - Sections - 3, 4 & 5
- Criminal Appeal - Conviction & Sentence - Life
imprisonment with fine - Evaluation of Evidences
- offence of demand of dowry and death - FIR -
allegations that, accused (appellant) demanded
dowry and threaten with dire consequences to
his wife (deceased) and when demand was not
fulfilled, deceased (wife) was set ablaze by her
husband - ultimately she was died due to
septicaemia - it is duty of every court to award
proper sentence having regard to nature of
offence and manner of its commission - the
judicial trend in the country has been towards
striking
a
balance
between
reform
and
punishment - distinction between 'murder' and
'culpable homicide' - held, instant case fall under
the exception 1 and 4 to section 300 of IPC -
hence, appeal is liable to be partly allowed -
impugned conviction u/section 302 IPC is liable
to be converted into conviction u/section 304
Part - I IPC. (Para - 27, 31, 33)

Appeal partly allowed. (E-11)

List of Cases cited:

1. Govindappa & ors. Vs St. of Karnataka,
(2010) 6 SCC 533

2. Hansraj Vs St. of Pun., AIR 2000 SC 2324

3. Sher Singh Vs St. of Har., 2015 (88) ACC 288
(SC)

4. Gautam Manubhai Makwana Vs St. of
Gujarat, Criminal Appeal No.83 of 2008, decided
on 11.9.2013

5. Krishan Vs St. of Har., (2013) 3 SCC 280

6. Tukaram & ors. Vs St. of Mah., (2011) 4 SCC
250

7. B.N. Kavatakar & anr. Vs St. of Karnataka,
1994 SUPP (1) SCC 304

8. Veeran & ors. Vs St. of M.P., (2011) 5 SCR 300

9. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926