Supreme Court of India
Pappu Tiwary vs State Of Jharkhand on 31 January, 2022Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, M.M. Sundresh






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
Signature Not Verified

Digitally signed by
Charanjeet kaur
fardbeyan of his younger brother, Pankaj Kumar Singh which was
Date: 2022.01.31
17:32:09 IST

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 (PW-

13) 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

Kumar4), 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

Maharashtra5. 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

Bihar7). 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 Rajasthan 8). 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 India 11 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
AIR 1956 SC 425
(1975) 4 SCC 153
(2017) 11 SCC 195
(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.
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
(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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