SHIV CHANDRA TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) THE appellant Shiv Chandra Tiwari has preferred the Criminal Appeal No. 2212 of 2011 and the appellant Dhruv Kumar Tiwari @ Pintu has preferred the Criminal Appeal No. 302 of 2012 against the judgement and order dated 15.12.2011 passed by learned Special Judge (E.C. Act), Gonda in S.T. No. 46 of 2010 whereby both the appellants have been convicted for the offence punishable under section 302/34 IPC, both the appeals have been admitted and in both the appeals appellants have moved the bail applications separately, therefore, both the bail applications are being disposed of by a common order.

(2.) FROM the perusal of the record it reveals that the FIR of this case has been lodged by Deep Narain Tiwari P.W. 1 on 30.8.2009 at 11.00 A.M. in respect of the incident allegedly occurred on 30.8.2009 alleging therein that marriage of the deceased Smt. Nisha Tiwari, the cousin sister of the first informant was solemnized with the appellant Dhruv Kumar Tiwari @ Pintu about 10 -11 years back. After three years of her marriage the Gauna ceremony was performed, thereafter the first informant and his family members were apprised by the deceased that the appellant Dhruv Kumar Tiwari was not having good habits. The appellant Dhruv Kumar Tiwari @ Pintu did not improve himself, even after persuasion made by the first informant and his family members. On the day of the incident the deceased was having four minor children. On 30.8.2009 the family members of the first informant received information that the deceased Smt. Nisha Tiwari was killed by the appellants by causing the injuries by kinfe, Hasiya and Scissors. In the commission of the alleged offence Smt. Chandrawati, the mother -in -law of the deceased was having conspiracy. According to the post mortem examination report which have done on 31.8.2009 at a bout 3.35 p.m. the deceased has sustained six ante mortem injuries in which injury No. 1 was incised wound on the front of the neck, the injury No. 2 was incised wound on the front of the neck below injury No. 1, injury No. 3 was multiple superficial incised wound on the neck, chest and shoulder, injury No. 4 was incised wound on right shoulder, injury No. 5 was incised wound on the right fore arm and injury No. 6 was contusion on the left side of the neck. In support of the prosecution version 11 witnesses have been examined in which P.W. 2 Shyama Devi, P.W. 3 Smt. Kiran and P.W. 4 Ashok Chandra Tiwari are neighbourers of the appellants. The co -accused Smt. Chandrawati have been acquitted by the trial court for the offence punishable under sections 120 -B and 302 IPC. According to the deposition of P.W. 2 Shyama Devi the alleged occurrence has taken place on 30.8.2009 at about 7, 7 -1/4 A.M. On refusal of the demand of money made by the appellant Dhruv Kumar Tiwari @ Pintu has committed the alleged offence. He badly beated her, at that time the mother -in -law of the deceased was not present at her house. According to her deposition the appellant Dhruv Kumar Tiwari committed the murder of the deceased by causing the injury on her person. The deceased was crying for her support but the appellant Shiv Chandra Tiwari did not come in her rescue, contrary to it he asked to finish the issue forever, thereafter the appellant Shiv Chandra Tiwari left the place. The deceased after sustaining the injury fell down, she was lifted by the appellant Dhruv Kumar Tiwari and taken in side the room. According to the deposition of P.W. 3 Kiran Tiwari, she came to the place of the incident on shouting made by the deceased, she saw the appellant Dhruv Kumar Tiwari causing the injury on the person of the deceased. At that time the appellant Shiv Kumar Tiwari was catching hold the hands of the deceased. According to the deposition of P.W. 4 Ashok Kumar Tripathi he came to the place of the incident on hue and cry made by the children of the deceased, she saw the appellant Dhruv Kumar Tiwari causing the injury to the deceased, the appellant Shiv Chandra Tiwari came in side the house in a running condition and caught hold the hands of the deceased. According to the deposition of the eye witnesses the injuries were caused on the person of the deceased by the appellant Dhiruv Kumar Tiwari @ Pintu, the husband of the deceased. Therefore, he is not entitled for bail. The prayer for bail of the appellant Dhruv Kumar Tiwari @ Pintu is refused.

(3.) SO far as the appellant Shiv Chandra Tiwari is concerned, according to the deposition of witnesses his case is of catching hold. According to the deposition of the witnesses he came to the place of the incident when the co -accused Dhruv Kumar Tiwari @ Pintu was causing the injury on the person of the deceased. It is alleged that he caught hold the hands of the deceased. In such circumstances, the appellant Shiv Chandra Tiwari is entitled of bail.