STATE OF BIHAR Vs. SANJAY TIWARY

JUDGEMENT

(1.) ALTHOUGH Government Appeal No. 11 of 2006 has been heard, along with Death Reference and Criminal Appeal in respect of conviction and grant of death sentence to accused, Sanjay Tiwary, the judgment of acquittal relates to acquittal of nine co-accused by a separate judgment dated 9th of May, 2006 whereas accused, sanjay Tiwary has been convicted by another judgment dated 4th of November, 2006. However, the oral evidence is same because the trial of Sanjay Tiwary had to be separated when he absconded at the stage of recording of his statement under Section 313 Cr. P. C. His trial could make further progress when he was apprehended and remanded in this case after a few months. The only difference in respect of evidence in the two trials is availability of certain documentary evidence against Sanjay Tiwary which have been taken on record after the acquittal of other co-accused persons. Those documents are Exhibits-14 and 15 series. Appellant, Sanjay Tiwary has been convicted for the offence under Section 302/34 and some other Sections of the IPC and has been inflicted with death penalty on the basis of evidence which will be indicated later which is available only against him and has no incriminating effect upon other co-accused who have been tried separately and acquitted.

(2.) THE prosecution case as disclosed in the fardbeyan, Exhibit-4 which is the basis of First Information Report, Exhibit-8 discloses that the informant who is an employee of deceased, Nalinikant Agrawal along with another employee had gone in the usual evening hours of 19-10-2003 to deposit the sale proceeds of the petrol pump belonging to the deceased at his residence. There he found the gate of the house locked from inside. It was opened after some time by one of the domestic servants and gradually the informant learnt that some unknown criminals had entered into the house in that evening and after tying the domestic servants and a security guard provided by the police they had committed murder of the deceased, Nalinikant Agrawal and his wife in two different rooms of the house by sharp cutting instrument and had also removed articles from the house. The miscreants had managed to escape by forcibly unhinging the door plank of the door at the back of the house. The Fardbeyan was against unknown persons. Such gruesome murder of two aged persons in their house in the town of bhabhua appears to have evoked some special reaction of police authorities. The fardbeyan was recorded by Officer-in-Charge of Bhabhua P. S. , Pankaj Kumar Das, p. W. 15. The Superintendent of Police, how-ever, entrusted the investigation to Shambhu nath Jha, Inspector of CID at Rohtas, PW-18 and the Officer-in-charge of Kudra P. S. , pawan Kumar Singh, PW-17 was deputed to assist the I. O. in investigation. It further appears that a dog squad and experts of finger Print Bureau, Patna were summoned who inspected the place of occurrence for finger prints and lifted several chance finger prints at the place of occurrence. In course of investigation police came to the opinion that some dissatisfied employees of the petrol pump belonging to the deceased, nalinikant Agrawal and some other persons having greedy eyes upon his property had conspired and taken the help of some other criminals in organizing murder of the two victims whose son had already been murdered in the same town a few years earlier and whose daughters, were married and lived away at different places. According to the I. O. , on the materials collected during investigation some of the accused persons were arrested and eleven of them including the appellant, Sanjay Tiwary made their confessional statements before the I. O. which he claims to have recorded and which have been marked as Exhibit-10 and 10 series. Of course, the accused persons retracted from their confessions and no confessions were made either before the judicial Magistrate or before trial Court. After investigation charge sheet was submitted by the police in which the acquitted accused persons and appellant, Sanjay Tiwary pleaded not guilty to the charges and hence they were put on trial.

(3.) THE prosecution in order to establish the charges examined altogether 22 witnesses but none of the material witnesses such as PWs-1 to 13 supported the prosecution case. They all including the informant, Baban Lal (PW-3) were declared hostile. PW-14, Dr. Ajay Kumar Manjhi and PW-16, Dr. Kaushal Kishore Prasad Srivastava are the doctors who conducted the post mortem examination of the dead bodies. PW-15, Pankaj Kumar Das, as noticed earlier recorded the Fardbeyan of the informant. PW-17, Pawan Kumar Singh is a police official who was associated with the investigating Officer in the investigation of the case. He is also said to have obtained finger prints of all the accused persons for the purpose of this case. PW-18, Shambhu Nath Jha is the Investigating Officer. PW-19, Dr. Sudhir was also a doctor of the team which con-ducted the autopsy on dead bodies. PW-20, sunil Agrawal is a relative and an employee of deceased, Nalinikant Agrawal. PW-21, arun Kumar Sharma, a constable was the bodyguard of the deceased, Nalinikant agrawal and PW-22, Punit Singh is a formal witness who brought the material exhibits in the Court. PW-20 and 21 have not named any of the accused persons and are of no help to the prosecution.