Asharam Tiwari vs The State Of Madhya Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2021 (Arising out of SLP (Crl.) No.239 of 2020)

ASHARAM TIWARI ....APPELLANT(S) VERSUS STATE OF MADHYA PRADESH ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellant, A2, assails his conviction and sentence

under Sections 302/34, 324/34, 325/34 and 323, IPC to life

imprisonment and lesser punishments. Four accused

persons were put on trial, the appellant being one of them,

for an occurrence that took place on 23.10.2006 at about

4.00 pm. Two persons were deceased and three injured.

Accused no. 3 and accused no. 4, who are not before us, have

Signature Not Verified also been convicted under Section 302. Accused no. 1 has Digitally signed by Jayant Kumar Arora

been convicted alike the appellant.

Date: 2021.01.12 16:17:50 IST Reason:

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3. The genesis of the occurrence lay in certain lands

purchased by PW­1, from the father of the appellant. Peeved,

the appellant along with the co­accused came to the lands of

PW­1 and asked him to return the lands to him. On refusal

by PW­1, the accused are said to have threatened the witness

and assaulted PW­1, his wife PW­4, their 12 years old son

Ramashankar who was deceased within twenty four hours

during course of treatment and their minor daughter. The

appellants are then said to have proceeded to the house of

Ramdas, the brother of PW­1, and shot him dead in presence

of his son PW­2.

4. Learned counsel for the appellant submits that he was

possessed of a lathi only. Two of the co­accused, A3 and A4,

were armed with a country­made pistol and an axe

respectively. Death of the two persons is ascribed to injuries

caused by axe and firearm respectively and not by lathi. The

third accused was also possessed of a lathi. The allegation of

assault with lathis is omnibus. It cannot be said with

certainty that the appellant also assaulted. The appellant did

2 not share any common intention with the other accused and

has been implicated at the behest of the village sarpanch.

His defence of alibi has not been considered properly. All

three witnesses being related, false implication is evident

because none of the independent witnesses have been

examined. The defence of the appellant under Section 313,

Cr.P.C. has not been properly considered.

5. Learned Additional Advocate General appearing for the

State submitted that common intention is apparent from the

fact that the four accused came armed together on the lands

of PW­1. Having failed in their threats to him for return of

the lands, all of them assaulted PW­1, PW­4, their daughter

and minor son. The accused then went together to the house

of the second deceased Ramdas and assaulted him also. The

appellant was well aware of the co­accused carrying a

country­made pistol and axe. The recovery of a bloodstained

lathi and clothes of the appellant pursuant to his confession

conclusively establish common intention.

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6. We have considered the submissions on behalf of the

parties and perused the evidence on record.

7. The appellant was unhappy that his father had sold

lands to PW­1 and wanted them back. The four accused

came to the lands of PW­1 and threatened him to return the

lands. On his refusal to do so, A3 and A4 first assaulted him

with an axe. A1 and the appellant assaulted him with lathis.

PW­4, and her two children came to the rescue of PW­1.

They were also assaulted and injured. A3 and A4 assaulted

Ramashankar on the head with the blunt edge and sharp

edge of an axe respectively. The appellant and A1 also

assaulted him with lathis. He died 24 hours later during the

course of the treatment at the hospital.

8. The accused persons then together went to the house of

the second deceased, Ramdas, the brother of PW­1. Accused

no.3 shot him dead while Accused no.4 assaulted him with

the sharp edge of an axe. The appellant and A1 assaulted

him with lathis. PW­2 was an eye witness to the assault.

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9. The post­mortem report of the deceased Ramdas

revealed the following injuries:

i. Contusion 8x6 cm on right arm (inflicted with hard and blunt weapon) ii. Contusion 6x5 cm in mid of left arm (inflicted with hard and blunt weapon) iii. Lacerated wound 4x1 cm deep upto the skin on the right brow (inflicted with hard and blunt weapon) iv. Ingress injury 5x3 cm which was oval shaped in the stomach (inflicted with a firearm) v. Egress injury 32 cm on the right side at the back at the level of 5th lumbar vertebra (firearm).

10. The post­mortem report of the deceased Ramashankar

revealed the following injuries:

i. Incised wound injury of 5cm in temporal area.

ii. Fracture and blood clotting. iii. 4x2 cm injury which was stitched on the right side of parietal area. iv. Incised wound on the left shoulder v. Injuries on the neck and forehead with hard and blunt object.

11. PW­1 and PW­4 are both injured witnesses. They have

both been found to be reliable and truthful. We see no

reason why they would falsely implicate another, when the

deceased was their own minor son. Similarly, PW­2 is the

5 son of the second deceased, an eye witness to the killing of

his father at home. The failure to examine any available

independent witness is inconsequential. It is the quality of

the evidence and not the number of witnesses that is

relevant. It is nobody’s case of the accused that PW­1 and

PW­4 were not injured in the same occurrence or that PW­2

was not an eye witness.

12. The number and nature of hard blunt injuries on the

two deceased make it apparent that the assailants were more

than one. Injuries by hard and blunt substance corroborate

the evidence of the injured witnesses and PW­2 of assault on

the two deceased by lathis also. Common intention is evident

from the accused persons coming to the lands of PW­1 armed

and intimidating him to return the lands followed by assault

upon him and those who came to his rescue. The accused

then immediately proceeded to the house of the second

deceased. The recovery of a bloodstained lathi and

bloodstained clothes of the appellant on his confession,

leaves us satisfied, on a cumulative appreciation of the

evidence, that the accused were actuated by a common

6 intention. The conviction of the appellant therefore calls for

no interference.

13. It was lastly submitted before us that the appellant has

completed over 14 years of custody including remission and

that he is 72 years old. Notwithstanding our refusal to

interfere with the conviction and sentence, if the appellant

makes an application for premature release, it is for the

authorities to consider the same in accordance with law. The

appeal is dismissed.

…………...................J. [R.F. NARIMAN]

.…………...................J. [NAVIN SINHA] NEW DELHI JANUARY 12, 2021.

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