JAI PRAKASH TIWARI Vs. STATE OF UP

JUDGEMENT

(1.) Applicant Jai Prakash Tiwari has approached this court through instant Criminal Misc Application U/S 482 Cr. P.C.(In short Code), questioning legality and sustainability of proceedings against him of Case No. 7053 of 1996, State versus Yogendra Rai and others, u/s 147, 148, 149, 302, 201, 218 120-B IPC, P.S. Gopiganj, district Bhadohi (now district Sant Ravidas Nagar, Bhadohi), relating to Crime No. 207/87, pending before CJM, Sant Ravidas Nagar, Bhadohi. Additional prayer is to quash various orders issuing NBWs and proclamation U/S 82/83 of the Code against him dated 13.12.2006, 30.9.2008 and 18.11.2008 vide Annexures No.1,1A and 1B to this Criminal Misc. Application (herein after referred to as Application). Stated briefly, preceding facts generating this Application are that real brother of informant Rajendra Prasad Singh, respondent no. 2 nemely Devendra Singh(Deceased) was shot dead by the police on 4.4.1982. In respect of the occurrence in which deceased lost his life two contradictory versions came to light- one by the police through SHO Shitla Prasad Pandey of PS Gopiganj and other by the informant respondent no. 2 Rajendra Prasad Singh. According to the Police version known dacoits Jai Prakash Tiwari and Kishav Pandey were companions of Tahsildar Singh, resident of village Semra, P.S. Chilha, district Mirzapur and they were regular visitors at his house. Police was informed on 4.4.1982 at 9.45 p.m. by an informer, which was inked at Rapat No. 34 at PS Gopiganj, that aforesaid dacoits along with 8-9 of their companions armed with fire arms are harbouring in the newly constructed house of Tahsildar Singh in Gopiganj and if raid is conducted without delay they can be apprehended. Believing information to be true SHO Shitla Prasad Pandey, S.I. Yogendra Kumar Rai, Constables Markandey Ojha, Manjoor Ahmad all armed with SBBL guns, S.I. S.M. Chaubey, S.I. A.K. Singh,S.I. Nagendra Tiwari all armed with revolvers and Constables Chitranjan Thakur , Ram Chandra Yadav, Israr Ahmad, Beer Malkhan Dubey and Chaturi Prasad driver all armed with clubs, started from police station at 9.55.p.m. for the spot and in the way they were joined by H.C. Paras Nath Singh, Ezaz Ahma, Phool Chandra Rai, Jawahar Ram, Rama Shankar Rai, Mohd. Anis Khan of police out post Gopiganj albeit, inspite of efforts no independent persons joined them. At 10.30 p.m. raiding part reached near the house where dacoits were harbouring and it laid seize of the place. Shutter of the room was down. At 10.45pm, on challenge being thrown a shooting spree ensued by cross-exchange of fires from both the sides. Some of the brigands came out of the room and plunged into the tank with water hyacinth (Jalkumbhi) situated adjacent to the room, some others fled towards north and some escapingly sprinted towards east. Dacoits, who escaped eastwards continued firing at the police raiding party and consequently,executing their plan, police party divided into two contingents gave them a chase. Meanwhile, one of the dacoits climbed the roof and started firing at the police party putting lives of police personnels into danger. To counter the situation three police personnels S.I. Yogendra Rai, Constable Ezaz Ahmad and SHO Shitla Prasad Pandey, concealing themselves climbed on the roof and dodging the fire made by miscreant made retaliatory fires shooting him down at 11 p.m, who was later on identified as Devendra Singh deceased brother of the informant. A SBBL gun number 3611-76 was lying on his chest with a bandolia wrapped round his waist studded with thirteen live cartridges which were recovered and seized vide annexure no.3.Many empties were scattered on the roof. Leaving the corpse of the dead brigand in the custody of constable Ezaz Ahmad, police personnels alighted from the roof in search of other dacoits but they had already managed their escaped. Some of the bullet empties were recovered from room and basement (tahkhana), which were sealed. In the aforesaid incident none of the police personnels, however, sustained any injury.

(2.) With the above allegations, SHO Shitla Prasad Pandey, got FIR, annexure 2 of Crime No. 74/82, u/s 147, 148, 149, 307 IPC and Crime number 75 of 82, U/S 25 Arm's Act,registered at P.S. Gopiganj district Varanasi( Now district Sant Ravi Das Nagar) on 5.4.82. Both the aforesaid Crime Nos. 74/82 and 75/82 were investigated by the police and ultimately two Final Reports were submitted in respect of both the crime numbers on 15.9.1982 vide annexure 4 which both were accepted by the Magistrate on 24.11.1982.

(3.) In respect of aforesaid incident a Magisterial inquiry was also conducted and it's report dated 25.11.82, annexure no. 5 countenanced Police version. According to applicants case informant and deceased had criminal proclivities and had history to their credit vide Annexure No. 6 to this Application.