Jharkhand High Court
Vikas Tiwary vs The State Of Jharkhand on 18 February, 2026
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Neutral Citation No. ( 2026:JHHC:4768-DB )
[Against the judgment and order of conviction and sentence dated
11.09.2020 (Sentence passed on 22.09.2020) passed by Sri Amit
Shekhar, learned Additional Sessions Judge-VI, Hazaribag in S.T. No.
141 of 2016]
Criminal Appeal (DB) No. 597 of 2020
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1. Vikas Tiwary, S/o Shambhu Nath Tiwary, R/o Patratu,
Post Office and Police Station- Patratu, District- Ramgarh
2. Santosh Pandey, S/o Yogendra Pandey, R/o Steam Colony,
Patratu, Post Office and Police Station- Patratu, District-
Ramgarh .... .... Appellants
Versus
The State of Jharkhand .... .... Respondent
With
Criminal Appeal (DB) No. 579 of 2020
---------
Vishal Singh @ Vishal Kumar Singh, S/o Late Niranjan Singh,
R/o Daud Nagar, P.O.- Daud Nagar, P.S.- Daud Nagar,
District- Aurangabad (Bihar), at present resident of Flat No.
303, 3rd Floor, Shrishti Enclave, Emli Kothi, P.O. & P.S.-
Hazaribagh, District- Hazaribagh (Jharkhand)
.... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
With
Criminal Appeal (DB) No. 599 of 2020
---------
1. Dilip Sao, S/o Jhari Sao, R/o Patratu Bazar, Post Office
and Police Station- Patratu, District- Ramgarh
2. Rahul Deo Pandey @ Rahul Dev Panday, S/o Shailendra
Pandey, R/o Paraiya Khurd, Post Office and Police Station-
Paraiya, District- Gaya, Bihar .... .... Appellants
Versus
The State of Jharkhand .... .... Respondent
---------
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mr. Surendra Singh, Sr. Advocate
Mr. Hemant Shikarwar, Advocate
Mr. Adarsh Kumar, Advocate
Mr. Dhurba Mukherjee, Advocate
(In Criminal Appeal (DB) No. 597 of 2020)
Mr. Anoop Prakash Awasthi, Advocate
Mr. Venkateshwar Gopal, Advocate
(In Criminal Appeal (DB) No. 579 of 2020
Mr. A.K. Kashyap, Sr. Advocate
Mr. K.S. Nanda, Advocate
Criminal Appeal (DB) No. 599 of 2020)
For the Resp.-State
: Mrs. Vandana Bharti, A.P.P.
Mr. Shailendra Kumar Tiwari, Spl. P.P.
Mr. Satish Prasad, A.P.P.
For the Informant : Mr. B.M. Tripathi, Sr. Advocate
Mr. Kumar Harsh, Advocate
Mr. Nutan Sharma, Advocate
Mr. Naveen Jaiswal, Advocate
Mr. Tejaswa Mohanta, Advocate
---------
C.A.V. on 17/09/2025 Pronounced on 18/02/2026
Per Rongon Mukhopadhyay, J.
Heard learned counsels for the parties.
2. Since all these appeals arise out of a common
judgment they are being disposed of by this common order.
3. These appeals are directed against the judgment
and order of conviction and sentence dated 11.09.2020 (Sentence
passed on 22.09.2020) passed by Sri Amit Shekhar, learned
Additional Sessions Judge-VI, Hazaribagh in S.T. No. 141 of 2016,
whereby and whereunder, the appellants Vikash Tiwary and
Santosh Kumar Pandey in Criminal Appeal (DB) No. 597 of 2020
have been convicted for the offences punishable u/s 120B, 302,
341, 353 read with Section 34 of the IPC, u/s 25(IA)/26/35 and 27
(2) of the Arms Act and Sections 3/4/5 of the Explosives
Substances Act and have been sentenced to imprisonment for life
along with a fine of Rs. 40,000/ each for the offence u/s 120B, 302
read with Section 34 of the IPC and in default in payment of fine
they were to undergo S.I. for 03 years; R.I. for 02 years along with
a fine of Rs. 6000/- for the offence u/s 353/34 of the IPC and in
default in payment of fine to undergo S.I. for nine months; S.I. for
one month along with a fine of Rs. 200/- for the offence u/s 341 of
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the IPC and in default in payment of fine to undergo S.I. for three
days; R.I. for eight years along with a fine of Rs. 20,000/- for the
offence u/s 25(IA) of the Arms Act and in default in payment of fine
to undergo S.I. for two years; R.I. for six years along with a fine of
Rs. 15,000/-for the offence u/s 26/35 of the Arms Act and in
default in payment of fine to undergo S.I. for 1½ years; R.I. for 10
years along with a fine of Rs. 25,000/- for the offence u/s 27(2) of
the Arms Act and in default in payment of fine to undergo S.I. for
2½ years; R.I. for 10 years along with a fine of Rs. 20,000/- for the
offence u/s 3 of the Explosives Substance Act and in default in
payment of fine to undergo S.I. for two years; R.I. for six years
along with a fine of Rs. 15,000/- each for the offences u/s 4 and 5
of the Explosives Substance Act and in default in payment of fine
to undergo S.I. for 1½ years.
The appellant Vishal Singh in Criminal Appeal (DB)
No. 579 of 2020 and the appellant no. 1 in Criminal Appeal (DB)
No. 599 of 2020 have been convicted for the offences u/s 120B,
302 read with Section 34 of the IPC, 353/34, 354/34, 341/34 of
the IPC and have been sentenced to undergo imprisonment for life
along with a fine of Rs. 30,000/- for the offences u/s 120B, 302
read with Section 34 of the IPC and in default in payment of fine to
undergo S.I. for 2½ years; R.I. for two years along with a fine of Rs.
6,000/- for the offence u/s 353/34 of the IPC and in default in
payment of fine to undergo S.I. for 9 months; S.I. for one month
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along with a fine of Rs. 200/- for the offence u/s 341 of the IPC
and in default in payment of fine to undergo S.I. for three days.
The appellant no. 2 in Criminal Appeal (DB) No.
599 of 2020 has been convicted for the offence u/s 120B/302 of
the IPC and has been sentenced to undergo imprisonment for life
along with a fine of Rs. 30,000/- and in default in payment of fine
to undergo S.I. for 2½ years.
All the sentences awarded to the respective
appellants were directed to run concurrently.
4. The prosecution case arises out of the fardbeyan of
Assistant Sub-Inspector of Police Birendra Prasad Singh recorded
on 02.06.2015 at 11:00 A.M., in which, it has been stated that on
the same day at 7:00 A.M. in four government vehicles, armed
escorts and fifteen Policemen in plain dress had come to the Civil
Court premises, Hazaribagh from Jai Prakash Narayan Central Jail
for production of the accused. On that day dreaded criminal Sushil
Srivastava who had several criminal cases against him in Bihar
and Jharkhand was also brought for production. It has been stated
that at 10:00 A.M. Sushil Srivastava was being taken to the Court
of Additional District & Sessions Judge-II in S.T. Case No. 362/11
and S.T. Case No. 164/10 in handcuffs and after completing the
necessary formalities when Sushil Srivastava reached the
Gulmohar Tree situated near the G.R. Office, 10-15 persons known
to Sushil Srivastava started touching his feet. At that point of time
two persons came and after paying their reverence and shaking
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hands with Sushil Srivastava started walking with him when all of
a sudden, a person come down from a Bolero vehicle which was
situated nearby bearing registration No. JH-12B-1694 and by
taking cover behind the Bolero vehicle started making
indiscriminate firing with an AK-47 rifle at Sushil Srivastava and
his two companions. One of the persons accompanying the
accused who was firing had thrown a hand grenade to create
terror. Sushil Srivastava as well as his accomplices suffered
gunshot injuries. The informant had directed the Police personnel
present to take up their positions and start firing at the assailants
and when firing started the assailants fled away by scaling over the
boundary wall in course of which one AK-47 rifle fell down on the
ground. All the miscreants managed to flee away on motorcycles.
Sushil Srivastava and his two accomplices were taken to Sadar
Hospital, Hazaribagh where Kamal and Gayas Khan died while
Sushil Srivastava was referred to Ranchi for better treatment but
he also died. In compliance to the orders of the superior authority
the Bolero vehicle was searched and posters were found in which it
was written that the murder of Kishore Pandey has been avenged
and mention was made of the name of Vikas Tiwary with “to be
continued….” written at the bottom. A live grenade was found from
inside the Bolero and from the place of occurrence 29 empty
cartridges, four pellets and a black purse were recovered in which
the photo copy of driving license and voters’ card of Sahnawaz
Alam were found. A pin and lever of a used grenade and an AK-47
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rifle near the closed gate of the Court premises as well as two
magazines were recovered. The articles were seized and the seizure
lists were prepared.
Based on the aforesaid allegations Sadar P.S. Case
No. 610/2015 was instituted u/s 341, 323, 326, 353, 307, 302,
120B/34 of the IPC and Sections 25(1-A), 25(1-AA), 26/27/35 of
the Arms Act and Sections 3/4/5 of the Explosives Substance Act.
On completion of investigation charge sheet was submitted and
after cognizance was taken the case was committed to the Court of
Sessions where it was registered as S.T. Case No. 141/2016.
Charge was framed against the accused u/s 120B, 341/120B,
353/120B, 307/120B, 302/120B of the IPC, Section 25(1A)/35,
26/35, 27(3) of the Arms Act, Sections 3/4/5 of the Explosives
Substance Act which were read over and explained to them in
Hindi to which they pleaded not guilty and claimed to be tried.
5. The prosecution has examined as many as forty-
two witnesses in support of its case.
6. P.W.1 (Sabbir Hussain) was posted as a Sub-
Inspector of Police in Sadar P.S. Hazaribagh and on 02.06.2015
while he was on patrolling duty he had received an information
from the Officer-in-Charge, Sadar P.S. to come to Civil Court,
Hazaribagh. On reaching the Court premises he came to know that
Sushil Srivastava and his two accomplices Gayas Khan and Kamal
Khan have been shot at by the members of the Vikas Tiwary gang
and that they have been sent for treatment to Sadar Hospital,
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Hazaribagh. The arms, ammunitions and other articles were seized
in his presence and he had signed upon the seizure list. Later on,
he came to know that Gayas Khan and Kamal Khan has died at
Sadar Hospital, Hazaribagh while Sushil Srivastava died on the
way to RIMS, Ranchi. He has proved his signature on the seizure
lists which have been marked as Exhibits-1 and 1/1. He has
stated that he does not know the accused of the case.
In cross-examination, he has deposed that he had
remained at the place of occurrence for about 1-1½ hours. None of
the persons present was agreeable to sign on the seizure list. He
had heard that the entire episode was orchestrated by the Vikas
Tiwary gang.
7. P.W.2 (Rahul Kumar Singh) was posted on security
duty in the Court premises at Hazaribagh on 02.06.2015 and the
incident had occurred at 10:30 A.M. near the Hibiscus plant and
the Indian Gooseberry tree situated in the front building. All the
Police personnel after production of Sushil Srivastava in the Court
of Additional Sessions Judge-II were coming down the stairs. A
Bolero was parked near the Gooseberry tree bearing registration
No. JH-12B-1694. He has stated that 2-3 persons came out of the
Bolero vehicle and blasted a grenade in front of the stairs after
which they started firing with AK-47 rifles. The bullet struck Sushil
Srivastava and his two accomplices. He immediately rushed
towards the motorcycle stand where he took shelter. All the three
accused persons after firing started fleeing away. He had fired at
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them with his Insas rifle. All the three assailants fled away after
scaling the wall and by leaving an AK-47 rifle near the wall. He and
the others had loaded Sushil Srivastava on a vehicle and had taken
him to Sadar Hospital, Hazaribagh from where he was referred to
Ranchi. He had later on come to know that the murders were
committed at the behest of some Tiwary. He has failed to identify
accused Vikas Tiwary, Santosh Pandey and Rahul Deo Pandey who
were produced through video conferencing.
In cross-examination, he has deposed that Sushil
Srivastava was an interstate criminal and 45 security personnel
were deputed for his security out of whom 18 were armed with
modern weapons like Insas rifles. Apart from him Dharmendra
Kumar Singh and Rajmuni Ram had also fired. He cannot say as to
whether any other Police personnel had fired or not. No seizure list
was prepared in his presence. When Sushil Srivastava was getting
down from the stairs there were 15 persons in front of him and 02
had come from behind and left after paying their reverence to
Sushil Srivastava. He does not know as to whether Aman
Srivastava and Avik Srivastava, the two sons of Sushil Srivastava
were present or not. His statement was recorded by Birendra
Prasad Singh. When the video conferencing for identification was
held, he could not identify because the pictures were hazy.
Subsequently, when the technical glitches were removed, he could
identify the accused who was in a red shirt who had disclosed his
name as Rahul Deo Pandey. He had disclosed to the S.P. and
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Officer-in-Charge Birendra Prasad that the person who was fleeing
away was tall and thinly built. He saw the person who was firing
from an AK-47 rifle. He had identified the accused wearing red
shirt as the person who was firing from the backside. There can be
some confusion as the accused he has identified was seen by him
from his back.
8. P.W.3 (Devendra Paswan) has stated that on
02.06.2015 at the time of the incident after production in the
Court of Additional Sessions Judge-II he was going towards the
hazat. Some persons known to Sushil Srivastava were paying their
reverence to him. All of a sudden from the northern side firing
started, at which, he and the rest of his colleagues took up
position. He suffered a firearm injury on his right leg. He made
counter firing and thereafter he became unconscious. He had later
on come to know that Sushil Srivastava and his two accomplices,
Kamal Khan and Gayas Khan had succumbed to the injuries
suffered by them. Due to the presence of so many people he could
not identify any of the accused and he had also become
unconscious due to the firearm injury suffered by him.
In cross-examination, he has deposed that he does
not have any knowledge about what occurred after he became
unconscious.
9. P.W.4 (Dharmendra Kumar Singh) was posted at
Police line, Hazaribagh. The incident is of 02.06.2015 at 10:30
A.M. in the Hazaribagh Court premises near a Gulmohar tree. He
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has stated that Sushil Srivastava was returning after his
production before the Additional Sessions Judge-II and when he
came down stairs some persons had shaken hands with him and
offered their greetings. The security personnel were making efforts
to remove these persons when all of a sudden firing started from
AK-47 rifles and bullets struck Sushil Srivastava and his two
acquaintances Kamal Khan and Gayas Khan. A counter firing was
resorted to by the Police after which the accused persons started
fleeing away. The accused persons were tall and thinly built who
were wearing black T-shirt and trousers with their faces covered
with a black cloth. In course of fleeing away one AK-47 rifle fell
down near the wall. The accused persons had managed to make
good their escape. While Sushil Srivastava was referred to RIMS,
Ranchi the other two injured persons were referred to Sadar
Hospital, Hazaribagh. Later on, he came to know that all three
have died. The Police authorities had thereafter scanned the place
of occurrence and prepared a seizure list. He has identified Vikas
Tiwary who was produced through video conferencing while he has
failed to identify Santosh Pandey and Rahul Deo Pandey.
In cross-examination, he has deposed that he had
seen Vikas Tiwary when he was apprehended and he had also seen
his photograph in the newspaper. He had seen the accused Vikas
Tiwary after two years from the time he had seen the photograph of
the accused in the newspaper. In course of investigation only the
S.P. had put questions and none else. He had not disclosed to the
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S.P. that the accused was tall, thinly built and having dark
complexion. He knew the accused by name since last 4-5 years. He
had not disclosed about the name of the accused to any other
person other than the S.P. He had not disclosed the name of the
accused to even Birendra Kumar Singh. When after production of
Sushil Srivastava they had come down the stairs within 2-3
minutes there was darkness all around. The smoke which had
engulfed the area cleared after thirty minutes. There was mayhem
all around. The Police personnel who were present had taken up
positions. All twenty Police personnel who had taken up position
had fired. He does not remember as to who had followed the
accused. He had seen only one person fleeing. He had seen from
the back Vikas Tiwary fleeing away. He had identified the son of
Sushil Srivastava who was having a water bottle in his hand. He
does not know his name.
10. P.W.5 (Rajmuni Ram) was one of the members of
the Special Force deputed for the security of the prison van. Sushil
Srivastava was taken in a prison van to the Court and after his
production all came down where a crowd had gathered to pay
reverence to Sushil Srivastava. He and the other security personnel
were trying to disperse the crowd when a blast occurred and the
area was consumed with smoke. From the side of the Bolero
vehicle firing was being made upon Sushil Srivastava and four
persons got injured. When the accused was trying to flee away
taking advantage of the commotion he had fired upon the accused.
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Sushil Srivastava, Kamal Khan, Gayas Khan and Hawaldar
Devendra Paswan become injured due to the firing and Sushil
Srivastava, Kamal Khan and Gayas Khan died. The Police had fired
thirteen rounds while the accused persons had fired 29-30 rounds.
He has failed to identify Vikas Tiwary, Santosh Pandey and Rahul
Deo Pandey when they were produced through video conferencing.
In cross-examination, he has deposed that he does
not know as to whether the 20-25 persons who had come to meet
Sushil Srivastava were his accomplices or not. He had recovered 6-
7 empty cartridges of AK-47 rifle.
11. P.W.6 (Ashok Tiwari) was posted in Sadar P.S.,
Hazaribagh and on 02.06.2015 the Officer-in-Charge had called
him on his mobile at 10:45 A.M. and asked him to come to the
Court premises as firing was going on. When he reached the Court,
he came to know that Sushil Srivastava and his two accomplices
Kamal Khan and Gayas Khan have been murdered. The murders
were committed by the Vikas Tiwary gang. He has proved his
signature on the two-seizure lists prepared by Ajit Kumar which
have been marked as Exhibits- 1/2 and 1/3.
In cross-examination, he has deposed that he had
not made any station diary entry before leaving the Police Station.
By the time he had reached the place of occurrence the incident
had already taken place. He was present at the place of occurrence
from 11:00 A.M. to 12:30 P.M. and during this period a staff
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collected blood-stained earth and kept it in two polyethenes. He
had also recovered 2-3 empty cartridges.
12. P.W.7 (Ajay Kumar Singh) was on duty in the Court
on 02.06.2015. Birendra Prasad Singh was his villager. After the
formality with respect to the production of Sushil Srivastava in
Court was completed, he was taken near the Gulmohar tree where
his well wishers had come to meet him. He and other security
personnel were trying to disperse the crowd when from a Bolero
vehicle 8-10 persons came out and started firing as a result of
which Gayas Khan and Kamal Khan died while being taken to the
Hospital and Sushil Srivastava died at Sadar Hospital. A person,
who was tall, thinly built and having dark complexion was fleeing
away and in course of the same a magazine and AK-47 rifle fell
down. About 29-30 rounds of firing was made. Later on, he came
to know that the murders were executed by the Vikas Tiwary gang.
He has identified Vikas Tiwary who was produced through video
conferencing.
In cross-examination, he has deposed that while
reading the newspaper he came to know that Sushil Srivastava has
been murdered by the members of the Vikas Tiwary gang. On
03.06.2015 the photo of Vikas Tiwary was published in the
newspaper. He had come to know that Police has arrested Vikas
Tiwary from Delhi. On 03.08.2015 the news of Vikas Tiwary being
brought to Hazaribagh and his photographs were published in the
newspaper Khabar Mantra. Vikas Tiwary was kept in the Police
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Station and several persons including him had seen him. Sitaram
Mishra, Mohit Prasad Singh, Vijay Kumar, Anuj Kumar, Uday
Shankar Paswan, Rajeev Ranjan and Rajendra Prasad Mehta had
seen Vikas Tiwary in the Police Station. After 02.06.2015, he never
used to come regularly to the Court since he was suspended. His
statement was never recorded by the Police. It is true that he had
identified Vikas Tiwary only on the basis of having seen his photo
in the newspaper.
13. P.W.8 (Sanoj Kumar) was posted as In-charge of
Padma O.P. and on 02.06.2015 he had received an information
that in the Court Hazat Sushil Srivastava, Gayas Khan and Ayub
Khan were murdered by the rival Pandey gang members, Vikas
Tiwary and others. He and the then Officer-in-Charge of Barhi P.S.
Akil Ahmad were entrusted to arrest Santosh Pandey. He and his
team had left for Paliganj and in village Jalpura he had arrested
Santosh Pandey on 08.06.2015 from the house of his sister. In
course of arrest a search was conducted and from the possession
of Santosh Pandey three mobiles with SIMS were recovered. He has
proved the seizure list which has been marked as Exhibit-2.
In cross-examination, he has deposed that he did
not have any arrest warrant for Santosh Pandey. After arrest the
statement of Santosh Pandey was neither recorded by him nor by
the Officer-in-Charge, Barhi P.S.
14. P.W.9 (Dharmendra Kumar) was posted at Sadar
P.S. and attached with Panther Mobile Unit. He had come to know
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that Sushil Srivastava has been shot and he was taken to Sadar
Hospital. On 05.06.2015 he was called to the State Bus Stand,
Hazaribagh by the Officer-in-Charge, Sadar P.S., D.N. Azad. A
search was made of accused Vishal Kumar and from his
possession two white colour mobiles were recovered. A seizure list
was prepared which has been proved and marked as Exhibit-3. A
second seizure list was prepared on 05.07.2015 regarding seizure
of a mobile and an Apache motorcycle bearing registration no.
JH02Q-6868 and the copy of the same was given to accused Dilip
Sao. He has proved the seizure list which has been marked as
Exhibit-4.
In cross-examination, he has deposed that despite
the presence of several persons it was the Police personnel who
had signed as witnesses.
15. P.W.10 (Ramswarop Dangi) was posted at Sadar
P.S. in the Panther Squad. He has proved his signature in the
seizure list which has been marked as Exhibit-4/1. On 05.07.2015
in the night he was on duty when the Officer-in-Charge had called
him to the old Bus stand. In his presence a search was conducted
of accused Dilip Sao and a mobile as well as an Apache motorcycle
were seized.
In cross-examination, he has deposed that when
the phone call had come, he was on patrolling duty in the Matwari
to Pagmal road. The accused was searched after he had reached
the Bus stand.
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16. P.W.11 (Sitaram Mishra) was deputed as a Security
Guard for Sushil Srivastava on 02.06.2015. He has stated that
after production he was returning with Sushil Srivastava and had
reached near the Gulmohar tree. Near the Gulmohar tree a vehicle
was standing. Some persons were paying reverence to Sushil
Srivastava. He and the other security personnel were dispersing
the crowd which had gathered to greet Sushil Srivastava when
some persons taking shelter behind a Bolero car started firing at
Sushil Srivastava. He and the others took up position and started
firing at which the accused persons started fleeing away towards
the northern side. There were about 8-10 persons who were
involved. The accused who was firing with an AK-47 rifle was tall,
thinly built and of dark complexion and though he managed to
scale the wall but his AK-47 rifle fell off near the wall. From the
place of occurrence 29-30 empty cartridges and 13 live cartridges
of AK-47 and a grenade from the vehicle were recovered. He had
fired 13 rounds. He had later on come to know that Sushil
Srivastava and his two accomplices have died. He has identified
Vikas Tiwary who was produced through video conferencing as well
as three accused persons who were physically produced in Court.
In cross-examination, he has deposed that A.S.I.
Birendra Kumar Singh was near Sushil Srivastava and he is the
main witness in the case. When on 02.06.2015 a grenade had
blasted there was utter chaos all around. He had thrown himself
on the ground. He had remained at the place of occurrence for
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thirty minutes. He had not fired but the other Police personnel did
fire. During his stay at the place of occurrence, Rajmuni Ram,
Rahul Kumar, Ravinandan Goshwami and Mohit Prasad were
present with him. In the meantime, the S.P., Dy. S.P. and Inspector
had arrived. During this half an hour period the rifles of the
Jawans were not seized. On 03.06.2015, the name of Vikas Tiwary
had come in the newspaper and his photograph was also
published. On 03.08.2015, the photograph of Vikas Tiwary was
published in Sanmarg. It was also mentioned in the newspaper
that it was a shooter from U.P. named Raj who had fired upon
Sushil Srivastava.
17. P.W.12 (Ajit Kumar) has stated that he was posted
at Sadar P.S., Hazaribagh and on 02.06.2015 a telephone call
came from the Officer-in-Charge, Dayanand Azad asking him to
immediately come to the Court premises. He had come to know
that Sushil Srivastava has been fired upon by Vikas Tiwary. He
has stated that empty cartridges, improvised hand grenade, poster,
lever and pin of hand-grenade, one AK-47 rifle, two magazines in
which one of the magazines had thirteen live ammunitions, a silver
colour Bolero etc. were seized. He had recorded the fardbeyan of
Birendra Prasad Singh. He has proved the handwriting and
signature of Dayanand Azad on the endorsement in the fardbeyan
which has been marked as Exhibit-5.
In cross-examination, he has deposed that he had
not made any station diary entry before leaving the Police Station.
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He did not find any injured person when he had reached the place
of occurrence as all by that time were taken to the Hospital.
18. P.W.13 (Virendra Prasad Mehta) was posted in
Police Line, Hazaribagh and on 02.06.2015 he was deputed in the
security of the Hazat. When after production Sushil Srivastava was
being taken to the Hazat and as soon as they reached near the
Gulmohar tree indiscriminate firing started from the Bolero vehicle.
There was mayhem and chaos and he and some other Police
personnel took up position and started firing. In course of
treatment, Sushil Srivastava, Kamal Khan and Gayas Khan died.
He claims to recognize the accused. He has identified Vikas Tiwary
who was produced through video conferencing and had also
identified three of the accused who were physically present.
In cross-examination, he has deposed that on the
date of occurrence Sushil Srivastava was handcuffed by Gandhauri
Prasad. Gandhauri Prasad at the time of the incident had left the
rope and fled away. When the S.P. asked him as to how many
rounds he had fired, he had replied that he had not fired due to the
prevailing chaos. It is a fact that on 03.06.2015 he had read the
newspaper Prabhat Khabar and had seen the photograph with
name of Vikas Tiwary printed on it. On 04.06.2015 also the
photograph of Vikas Tiwary was printed in Prabhat Khabar and on
02.08.1995 as well as on 03.08.1995 the photograph of Vikas
Tiwary was published in Dainik Bhaskar and Khabar Mantra
-18-
respectively. He has identified Vikas Tiwary due to his photograph
having been published in the newspaper.
19. P.W.14 (Uday Shankar Paswan) was posted on
02.06.2015 in the Civil Court, Hazaribagh for the purposes of
security of the prisoners. On the said date, he had taken Sushil
Srivastava for production before the Court of Additional Sessions
Judge-II and thereafter to another Court. After production as soon
as they reached near the Banyan tree several persons started
meeting Sushil Srivastava and touching his feet. From behind the
Bolero vehicle bearing registration no. JH12B-1694 firing started
upon Sushil Srivastava. Apart from Sushil Srivastava one Gayas
and another person also received bullet injuries. One person died
at the spot while the rest two persons died on way to the Hospital.
A grenade was thrown which created a pandemonium. He and the
other Police personnel took up position and was prevented from
resorting to firing on the fear that some innocent might get hurt.
Vikas Tiwary was fleeing away with his arms and in course of
which his AK-47 rifle fell down inside the boundary wall. Vikas
Tiwary had scaled a wall and fled away on a motorcycle.
Immediately the higher Police officials had assembled and seizure
of various articles were made. He has identified Vikas Tiwary,
Rahul Deo Pandey and Santosh Pandey through video
conferencing.
In cross-examination, he has deposed that
seventeen Jawans armed with Insas rifles were deputed for the
-19-
security of Sushil Srivastava. All the Jawans had formed a ring
around Sushil Srivastava so that no one can come near him. In the
meantime, 15-20 persons from the gang of Sushil Srivastava had
started shaking his hand and touching his feet when a loud
explosion occurred and the area was covered in darkness. This
created a chaos and all the Jawans in order to save themselves ran
helter-skelter. The handcuff with a rope on Sushil Srivastava was
in the hands of Gandhauri Prasad who fled away and he does not
know where Gandhauri Prasad went. The accused had fled away
prior to the arrival of the top Police officials. It is a fact that on
02.06.2015 all the seventeen Jawans were called to the Police
Station by the S.P. and all their arms were seized and all seventeen
were suspended and their statements were also recorded. The
evidence is being given on the basis of the said statement. On
03.06.2015 the incident of 02.06.2015 was published in Daily
Newspaper Prabhat Khabar where the photograph of Vikas Tiwary
was printed. The photographs of Vikas Tiwary were published on
04.06.2015, 02.08.2015 and 03.08.2015 as well. He has come to
know about Vikas Tiwary from the photographs which were
published. He does not know Vikas Tiwary by name but knows him
by his face. He had disclosed to the S.P. that Vikas Tiwary was
fleeing away while firing and this fact was not shared with anyone.
It is a fact that he had not disclosed before the S.P. of recognizing
Rahul Deo Pandey and Santosh Pandey.
-20-
20. P.W.15 (Mohit Prasad Singh) has stated that on
02.06.2015 he was on duty in the Sessions Court, Hazat. When he
had come down from the stairs and had come near the Gulmohar
tree 2-4 persons came to meet Sushil Srivastava and in the
meantime a bomb was thrown and firing started. In course of
indiscriminate firing Md. Kamal and Md. Gayas died at the place of
occurrence itself and Sushil Srivastava died on the way to the
Hospital at Ranchi. The accused persons were fleeing away while
firing and in course of getting away they had left behind an AK-47
rifle. He has identified Vikas Tiwary, Rahul Deo Pandey and
Santosh Pandey who were produced through video conferencing.
In cross-examination, he has deposed that due to
the bomb blast there was total chaos and all the persons present
fled helter-skelter. In the meantime, Gandhauri Prasad who had
the handcuff and rope of Sushil Srivastava had also fled away.
Birendra Prasad Singh who was close to Sushil Srivastava also hid
himself somewhere. It is a fact that 1-2 accused persons had
scaled the wall and fled away and nobody followed them. The S.P.
had interrogated all the twenty-two Jawans who had seen the
occurrence and had also given it in writing. On the next day of the
occurrence all their weapons were seized and all the twenty-two
Jawans were suspended. The report of the incident was published
in Prabhat Khabar on 03.06.2015 and he had also seen the
photograph of Vikas Tiwary printed on it. On 04.06.2015 and
02.08.2015 he had seen the photo of Vikas Tiwary which was
-21-
published in the newspaper. The photo of Vikas Tiwary which was
seen by him in the newspaper was etched in his memory and that
was the reason he had been able to identify Vikas Tiwary in the
video conferencing.
21. P.W.16 (Rajeev Ranjan) was posted at Police Centre,
Hazaribagh and on 02.06.2015 he was deputed for duty in the
Court. After the formalities regarding production of Sushil
Srivastava was complete, they had reached near the Gulmohar tree
when some persons started shaking hands with Sushil Srivastava
and also touched his feet and they were being persuaded not to do
so. In the meantime, 08-10 accused armed with AK-47 rifle and
pistols came out from the Bolero vehicle and started firing at
Sushil Srivastava and Kamal Khan as well as Gayas Khan who
were standing besides Sushil Srivastava. A bomb was also
exploded by the accused persons. There was chaos all around. He
had seen a thinly built dark complexioned man fleeing away while
firing. In course of scaling the wall the AK-47 rifle of the accused
fell down. Gayas Khan and Kamal Khan died at the spot while
Sushil Srivastava died on the way to the Hospital. He had later on
come to know that Vikas Tiwary and his gang were responsible for
the firing. He has identified Vikas Tiwary, Rahul Deo Pandey and
Santosh Pandey who were produced through video conferencing.
In cross-examination, he has deposed that Sushil
Srivastava is a notorious criminal and for his safety seventeen
Jawans were deputed. All the Jawans were armed with Insas rifles.
-22-
He cannot say as to on which part of the body of Sushil Srivastava
bullets had struck. On 03.06.2015, the incident was reported in
Prabhat Khabar and the photograph of Vikas Tiwary was published
which he had seen. Subsequently the photographs of Vikas Tiwary
were also published on various newspapers. It is not true that at
the time of the incident Rahul Deo Pandey was in jail.
22. P.W.17 (Vijay Kumar) was posted in the Police Line
and on 02.06.2015 he was on duty in the Prison Van. As soon as
they reached near the Gulmohar tree after completing the
formalities relating to production of Sushil Srivastava in the Court
some known persons of Sushil Srivastava started shaking his hand
and touching his feet. He dispersed these persons when all of a
sudden 08-10 persons came out of a Bolero vehicle bearing
registration no. JH12B-1694 and after blasting a bomb started
firing at Sushil Srivastava. The bullet struck Sushil Srivastava and
his two accomplices; one Gayas Khan and another. Since a chaos
ensued firing could not be made upon the accused. One Police
personal had suffered a firearm injury. He had chased an accused
but he managed to flee away. Both the injured accomplices of
Sushil Srivastava died at the spot while Sushil Srivastava died on
way to the hospital. Later on, he came to know that Vikas Tiwary
and his gang were involved in the shootout. He has identified Vikas
Tiwary, Rahul Deo Pandey and Santosh Pandey who were
produced through video conferencing.
-23-
In cross-examination, he has deposed that
seventeen Police personnel including him were deputed for the
security of notorious criminal Sushil Srivastava. The security
personnel had made a ring around Sushil Srivastava to prevent
anyone from meeting him. He and the other Police personnel
deputed to provide security to Sushil Srivastava were called to the
Police Station by the S.P. and all were suspended apart from
seizing their arms. The incident was published in Prabhat Khabar
on 03.06.2015 where the photo of Vikas Tiwary was also
published. On 04.06.2015 and 02.08.2015 once again the
photograph of Vikas Tiwary were published. He had thereafter
come to know that Vikas Tiwary has been arrested and he has
been kept in Sadar P.S., Hazaribagh.
23. P.W.18 (Anuj Kumar Sharma) was posted in the
Police Line and on 02.06.2015 he was deputed in the escort party
for the production of Sushil Srivastava. When after production of
Sushil Srivastava they had reached near the Gulmohar tree 08-10
persons came out of a Bolero vehicle bearing registration no.
JH12B-1694 and started making indiscriminate firing injuring
Gayasuddin, Md. Kamal Khan and Sushil Srivastava. A hand
grenade was also thrown which led to a pandemonium. All the
three injured died near the Gulmohar tree. The accused thereafter
taking advantage of the chaos fled away by scaling a wall and in
course of escape an AK-47 rifle fell down. He had later on come to
know that the firing was done by Vikas Tiwary, Santosh Pandey
-24-
and the other gang members. He has identified Vikas Tiwary,
Santosh Pandey and Rahul Deo Pandey who were produced
through video conferencing.
In cross-examination, he has deposed that the
security personnel entrusted with the duty of protecting Sushil
Srivastava had Insas rifles in their possession. The handcuff and
the rope tied around the waist of Sushil Srivastava was in the
hands of Gandhauri Prasad. His statement was recorded after one
month of the occurrence. The incident of 02.06.2015 was
published in Prabhat Khabar along with the photos of Vikas Tiwary
which he had seen. Subsequently also on 04.06.2015 the
photograph of Vikas Tiwary was published which he had seen as
well.
24. P.W.19 (Dr. Gopal Das) was posted as a Medical
Officer at Sadar Hospital, Hazaribagh and on 02.06.2015 post-
mortem examination of Md. Kamal was conducted by a Medical
Board comprising of himself, Dr. Vijay Shankar and Dr. S.R.
Dangi. He has proved his signature in the postmortem report
which has been marked as Exhibit-6.
On the same day autopsy was conducted on the
dead body of Gayas Khan @ Md. Nasib by the same Medical Board.
He has proved his signature on the postmortem report which has
been marked as Exhibit-7.
-25-
In cross-examination, he has deposed that the
postmortem report has been prepared by Dr. Vijay Shankar who
was heading the Medical Board.
25. P.W.20 (Dr. Vijay Shankar) was posted at Sadar
Hospital, Hazaribagh and on 02.06.2015 he and the other
members of the Medical Board had conducted autopsy on the dead
body of Kamal and had found the following:
1. Fire arm wound ¼” x ¼” oval in shape, margins
inverted, radish black in color at right iliac fossa of
abdomen, just above anterior superior iliac spine-
entry wound.
2. 1-1/2″ x 1″, Muscle mass protruding from the
margins, edges evorted blackish in color. – Exit
wound. On probing it communicated with the
entry and exit wound.
On exploration blood found in thoracic and
abdominal cavity, heart was pale with chambers
empty, lungs pale, intestine and osmium found
ruptured at many places, liver pale, spleen mildly
congested, kidney pale, stomach showing undigested
rise dark and water.
The cause of death was opined to be due to shock
and haemorrhage resulting from gunshot injury. The postmortem
report has been proved and marked as Exhibit-6/1. The signature
of Dr. Vijay Shankar and Dr. S.R. Dangi have been proved and
marked as Exhibits -6/2 and 6/3 respectively.
On the same day the Medical Board had conducted
autopsy on the dead body of Gayas Khan @ Md. Wasif and had
found the following:
1. Lacerated wound 3″ x 1″ x muscle deep, red in
colour on right thigh.
-26-
2. Lacerated wound 1-1/2″ x ½” x ½” deep reddish
in colour on right thigh near knee joint.
3. Fire arm wound-(a) 1″ x ½” over the left iliac fossa
closed to the junction of the abdomen and thigh
blackish in colour-entry wound, (b) 2-1/2″ x 1-
1/2″ muscle coming out of the wound, margins
averted-Exit wound (c) 2″ x 1″ reddish in colour
with margins inverted just below left axilla-entry
wound (d) 4″ x 2″ muscle protruding from margins
over the occipital area-Exit wound.
On exploration of the abdomen intestine found
ruptured in many places. In the thoracic cavity heart
was found pale and punctured in region in left
ventricle. Both chamber of the heart empty, liver found
ruptured at lower part spleen ruptured, kidneys pale
fracture of the tenth rib on left side. Lungs lacerated on
the left side. Stomach contained undigested food on
exploration of the scalp wound there was damage to
the occipital wound and laceration of brain tissue,
meninges.
The cause of death was opined to be due to
haemorrhage and shock resulting from gunshot injury. The
postmortem report has been proved and marked as Exhibit-7/1.
His signature and the signature of Dr. S.R. Dangi on the
postmortem report have been proved and marked as Exhibit-7/3
and 7/2 respectively.
26. P.W.21 (Dr. S.R. Dangi) was posted at Sadar
Hospital, Hazaribagh and on 02.06.2015 a Medical Board
comprising of him, Dr. Gopal Das and Dr. Vijay Shankar had
conducted autopsy on the dead bodies of Md. Kamal and Gayas
Khan and they had prepared the postmortem report in which all
three have put their signature.
-27-
27. P.W.22 (Birendra Prasad Singh) is the informant
who has stated that on 02.06.2015 at 10:45 A.M. he was on duty
as the In-charge of Court Hazat and along with him were sixteen
Jawans who were taking Sushil Srivastava to the Court of
Additional Sessions Judge-II for production. As soon as they
reached near the Gulmohar tree firing started on Sushil
Srivastava. One or two persons from behind a Bolero vehicle
started firing with an AK-47 rifles and in course of firing the bullets
struck Sushil Srivastava, Kamal Khan and another person. On his
orders Police made counter firing. A bomb was also exploded by the
accused persons which led to a pandemonium. He immediately
informed his higher authorities after which the S.P., Dy. S.P. and
others arrived at the spot. The injured were rushed to Sadar
Hospital in a government vehicle and Kamal Khan and Sabir
Hussain died during treatment while Sushil Srivastava was
referred to RIMS, Ranchi where he succumbed to his gunshot
injuries. A seizure was made of the Bolero vehicle, a bag, thirteen
live cartridges and an empty cartridge. His fardbeyan was recorded
by Ajit Kumar. He has proved his signature on the fardbeyan
which has been marked as Exhibit 5/1. The accused who had
made the firing managed to escape by scaling a wall. On reading
the newspaper they could come to know that the incident was
executed by the gang of Vikas Tiwary.
In cross-examination, he has deposed that at the
time of recording his fardbeyan the S.P. and the Dy. S.P. were also
-28-
present. The articles which were seized from the vehicle was done
in his presence. He has stated that Gandhauri Prasad had fled
away from the place of occurrence.
28. P.W.23 (Sanjay Kumar Rana) was posted at
Jharkhand Police Academy as head of CLI and BDST. He has
produced the bomb disposal report in Court pursuant to the
direction of S.P. Hazaribagh and the Court. The live grenade was
defused and the residue was sent to FSL for examination. He has
proved the carbon copy of the report which has been marked as
Exhibit-8.
In cross-examination, he has deposed that the
grenade was an improvised device.
29. P.W.24 (Avik Kumar @ Avik Srivastava) has stated
that the occurrence had taken place on 02.06.2015 at 10:30 A.M.
in the Court premises. He along with his elder brother Aman
Srivastava had come to meet their father, Sushil Srivastava. His
father had said about meeting them in leisure after attending the
Court. After some time, his father came out of the Court and as he
came downstairs, he had seen some persons standing near a
Bolero vehicle which was parked besides the tree. The persons who
were standing were Vikas Tiwary, Santosh Pandey, Vikas Sao,
Deepak Dhobi, Dilip Sao, Sunil Dhobi, Vishal Singh and a few
others. As soon as his father came down Vikas Tiwary took out a
firearm and started making indiscriminate firing. Vikas Tiwary had
also exploded a bomb. There was smoke all around and by the time
-29-
the accused persons by throwing away the firearm were fleeing his
father had already sustained gunshot injuries. He had brought his
father to Sadar Hospital, Hazaribagh from where he was referred to
RIMS, Ranchi and on the way he died. He has identified Santosh
Pandey and Vikas Tiwary who were produced through video
conferencing.
In cross-examination, he has deposed that it is true
that his father was lodged in Central Jail, Hazaribagh for eighteen
years. He used to meet his father in Court from his childhood.
Several years back on 26.07.2008 an attack was made upon his
mother and his father had disclosed that it was orchestrated by
Bhola Pandey. He is aware of the fact that when his father was
lodged in Birsa Munda Jail one Bhoma Singh was murdered for
which his father was convicted. He had seen the photographs of
the accused in the newspaper. He does not remember as to
whether after the incident the photo of the accused was published
in the newspaper or not. It is a fact that he had not seen Vikas
Tiwary prior to the incident. His father had never disclosed to him
about the age and physical features of Vikas Tiwary. He does not
know the accomplices of his father. There were 15-18 Police
personnel looking after the security of his father. He was standing
at a distance of 20-30 feet from the place where the occurrence
had taken place. When he had taken his father to the Hospital, he
and his brother’s cloths were smeared in blood. He had not given
any oral or written information about the incident to the Police
-30-
personnel who had reached the place of occurrence. He does not
know as to whether any case was lodged on 02.06.2015 or not. No
case was lodged by him on 02.06.2015 or by the accomplices of his
father. After 02.06.2015 he had come to Hazaribagh on 02.09.2015
and during this period he had not instituted a case either at
Ranchi or at Hazaribagh. He has stated that on 03.09.2015 he had
come to Hazaribagh with his brother and on that day, he had filed
a case at Hazaribagh. He had filed a written report in the Police
Station. He is giving evidence in the case which he had lodged on
03.09.2015. He does not remember whether he had filed a case at
Ranchi or not. On 02.06.2015 his brother Aman Srivastava had
given a written report in Sadar P.S., Ranchi. He does not remember
whether his brother had lodged a case at Sadar P.S., Ranchi on
02.06.2015 against Vikas Tiwary, Kameshwar Pandey, Bablu
Pandey and Sanjeev Neogi with respect to the incident which
occurred at Hazaribagh. After a written report was given on
03.09.2015 the Police had enquired from him on 09.09.2015. He is
not in touch with his brother for 2½ years. He does not know the
place where his brother resides or the work he does. He does not
know the source of income of his family. On the date of occurrence,
he had not disclosed the incident to his family members. In the
written report dated 03.09.2015 he had mentioned about the
presence of Vikas Tiwary, Santosh Pandey, Vikas Sao, Deepak
Dhobi, Dilip Sao, Sunil Dhobi and Vishal Singh near the vehicle.
He had also mentioned that as soon as his father came down the
-31-
stairs on the signal of Vikas Tiwary the others had surrounded
him. He had seen Vikas Tiwary firing with an AK-47 rifle and he
had also exploded a bomb. Vikas Tiwary and the other members of
his gang scaled the wall and fled away. He cannot describe the age
and physical features of Deepak Dhobi and Sunil Dhobi and
though both were standing but he is not sure as to whether they
were involved in the firing or not. Out of Santosh Pandey, Vikas
Sao, Dilip Sao and Vishal Singh, Santosh Pandey was firing. He
has deposed that Vikas Tiwary was firing with a pistol from his
right hand. He had not seen as to whether the 6-7 persons who
were standing with Vikas Tiwary were having AK-47 rifles or not.
His statement was recorded by the Police on 09.09.2013 and on
03.09.2013. It is true that there was enmity between his father and
Vikas Tiwary.
30. P.W.25 (Deepak Kumar Rao) has stated that on
02.08.2015 at 10:30 A.M. he was standing near the Gulmohar tree
in the Court premises along with his acquaintances Sahadat
Ansari and Ajay Prakash Singh. At the said place Vikas Tiwary
along with his accomplices Santosh Pandey, Dilip Sao, Vikas Sao,
Vishal Singh, Deepak Dhobi and Sunil Dhobi were present. After
sometime they had heard the sound of firing and explosion of a
bomb. He had seen Vikas Tiwary along with his accomplices firing
with an AK-47 rifle on 3-4 persons. When the Police took action
Vikas Tiwary, Vishal Singh, Dilip Sao, Santosh Pandey, Deepak
Dhobi, Sunil Dhobi, Sonu Tiwary, Basant Karmali and Bablu
-32-
Thakur fled away after throwing the AK-47 rifle. He had later on
seen Kamal Khan and Gayas Khan lying dead and Sushil
Srivastava was taken on an ambulance to the hospital. He had
seen Vishal Singh, Dilip Sao, Santosh Pandey, Deepak Dhobi,
Sunil Dhobi, Bablu Thakur, Ashish Mehra @ Nepali, Basant
Karmali, Sonu Tiwary and Vikas Sao roaming around with Vikas
Tiwary on several occasions at Patratu. He has identified Santosh
Pandey as one of the persons involved in the shoot out who was
produced through video conferencing but he had not identified
Rahul Deo Pandey. He has also identified Vikas Tiwary who was
present through video conferencing.
In cross-examination, he has deposed that in one
case he had gone to Jail along with his sister named Juli and her
mother-in-law Amberi Begum. When he had reached the place of
occurrence the incident had already occurred by then. On
02.06.2015 out of 50-100 persons from Patratu in the Court he
had identified 5-7 persons and amongst them were Vikas Tiwary,
Santosh Pandey, Dilip Sao, Vishal Singh, Deepak Dhobi, Sunil
Dhobi, Bablu Thakur and Vikas Sao. He does not have any
closeness with these persons nor does he have any enmity with
them. He had seen these persons from a distance of 25-30 feet.
When the firing started, he fled towards the GR Office and in
course of which he had seen Vikas Tiwary along with his 3-4
accomplices firing. The Police had reached the place of occurrence
before him. When he had reached two persons were already lying
-33-
dead. He does not remember as to whether in his statement before
the Police he had stated about Santosh Pandey and Vikas Sao
loitering with Vikas Tiwary on the date of occurrence. After
perusing the diary, he says that the two names are not mentioned.
He does not remember as to whether he had stated before the
Police that Vikas Tiwary with his accomplices were firing upon 3-4
persons indiscriminately from an AK-47 rifles. On perusing para
18 of the case diary, he has deposed that the same has not been
mentioned. He had not stated before the Police that when Police
took action Vikas Tiwary, Vishal Singh, Dilip Sao, Santosh Pandey,
Deepak Dhobi, Sunil Dhobi, Sonu Tiwary, Basant Karmali and
Bablu Thakur fled away from a gate by leaving an AK-47 rifle. He
was not taken to the Test Identification Parade to identify Vikas
Tiwary. He has stated that due to the chaotic situation he could
not give attendance in the Court.
31. P.W.26 (Satyendra Singh) was posted at FSL,
Ranchi as a Ballistic Expert. The Investigating Officer had sent a
sealed packet through Memo No. 325 dated 13.06.2016 and it
contained the following:
(i) The parcels consisted of one cardboard box
within a cloth cover, which was duly sealed with
impressions of seal corresponding with
impression forwarded. It contained on AK-47
rifle marked-A, 13 live rounds AK-47 rifle
cartridges marked-B and 02 AK-47 rifles
magazines marked-C, along with other Ext.
marked-D.
(ii) Description-
-34-
1. One sealed cloth bound packet
bearing P.S. Sadar Case No. 610/2015
dated 02.06.15 etc contained one 7.62
calibre AK-47 regular rifle bearing no.
M20019 with foldable iron but and without
magazine and sling. A paper slip bearing
P.S. Sadar Case No. 610/2015 dated
02.06.15 signature of CJM dated 03.06.15
and witnesses etc was pasted on it. It was
marked as A by the I.O. and was also
marked as A in the laboratory.
2. One sealed cloth bound packet
bearing P.S. Sadar Case No. 610/2015
dated 02.06.15 etc. marked B by the I.O.
contained one plastic dubba having a paper
slip bearing P.S. Case No. 610/2015 dated
02.06.15 signature of CJM dated 24.05.16
etc. contained 13 live round of 7.62 calibre
AK-47 rifle cartridges, these were marked
as B1 to B13 in the laboratory.
3. One sealed cloth bound packet
bearing P.S. Sadar Case No. 610/2015
dated 02.06.15 etc. marked C by the I.O.
contained two empty iron magazines of AK-
47 rifles, these were marked as C1 and C2
in the laboratory.
Test Cartridge fired
4. Two live rounds of 7.62 MM calibre
cartridges marked B1 and B2 noted in item
2 fired from AK-47 rifle bearing no. M20019
noted in item 1 as test cartridges and test
firing shells were marked as TCS1(A) and
TCS2 (A) and test fired bullets were marked
as TC and TCB2(A) in the laboratory.
The result of the analysis and its conclusion are
depicted as follows:
(i) The Ext. marked C1 and C2 are two iron
magazines of 7.62 mm calibre AK-47 rifle. These
can be used to accommodate 7.62 mm calibre
cartridges to fire 7.62 mm calibre AK-47 rifle.
-35-
He has proved the report which has been marked
as Exhibit-9.
In cross-examination, he has deposed that the
firearm was sent for examination after one year of the incident. As
per his report one bullet out of four pellets were not fired from the
seized AK-47 rifle. It was fired from another AK-47 rifle.
32. P.W.27 (Sumanta) had joined as a Scientific
Assistant in SFSL, Ranchi and had assisted Dr. H.K. Sinha, the
then Assistant Director, SFSL in the working of Biology and
Serology examination of the exhibits produced. He has proved both
the reports prepared in his laboratory at SFSL, Ranchi which have
been marked as Exhibit-10 and 10/1. The result of the biological
examination was that blood was detected all over in the Exhibits
marked 1, 2 and 3. Blood could not be detected in the Exhibit
marked-4.
33. P.W.28 (Sayed Bashir Ahmad) is an Assistant
Director in SFSL, Ranchi and he is an expert in explosives and
Physics. He has proved the report regarding examination of the
lever and pin which has been marked as Exhibit-11. He has also
proved the report with respect to the testing of aluminium coloured
powder and which has been marked as Exhibit-11/1.
34. P.W.29 (Dr. Sanjay Kumar) was posted as Assistant
Professor, Department of Forensic Medicine, RIMS, Ranchi and on
03.06.2015 he along with the other members of the Medical Board
namely, Dr. Sourav Banarjee, Tutor, Department of Pathology, Dr.
-36-
Rishi Tuhin Guria, Assistant Professor, Department of Medicine
and Dr. Sanatan Bhagat, Professor, Department of Surgery had
conducted autopsy on the dead body of Sushil Srivastava and had
found the following:
(A) On external Examination: All cloths were grossly
blood stained. Body was of average built with rigor
mortis developed on eye lid, jaw, elbows, knees, all
fingers and all toes. Pupils were bilaterally dilated and
fixed. Abdomen was slightly distended.
(B) Fire arm injuries:
I. Wound of entrance of .5 cm x .5 cm was
situated on right upper part of chest, 4 cm
right lateral from midline and situated at
the edge of right clavicle.
II. Wound of entrance of .5 cm x .5 cm was
situated on right lower chest at the lable of
.5 cm right lateral to midline and 8 cm
below right nipple. Abrasion of 3 x 1 cm
was associated on medial side of main
wound of entrance. Projectile passed
through chest wall, pleura and right lower
lobe of lung and passed out of body by
making an exit wound of 1 cm x 1 cm
situated on right lower back 5 cm right
lateral in …. at T10 (10th Thoracic
vertebrae) level.
III. Wound of entrance of 1 cm x 5 cm, oval in
safe was situated on lateral part of
abdomen at 22 cm below left axilla and 5
cm medial to mid axillary line. The
projectile passed through abdominal wall,
abdominal cavity tearing spleen and left
kidney and passed out of body by making
an exit wound of .5 x .5 cm on middle of
left lateral of lower back.
IV. Wound of entrance of 3 cm x 1 cm, oval in
safe was situated on right lateral part of
abdomen at umblical lavel and 18 cm right
lateral to umblicus. The projectile passed
through soft tissue, abdominal cavity,
ascending colon, and passed out of body
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by making an exit wound of .5 cm x .5 cm
on right lower back at the level of iliac
crest.
V. Wound of entrance of .5 cm x .5 cm was
situated on left forearm at antero-medial
part 6 cm below left elbow joint. The
projectile passed through soft tissue and
broke the ulna bone and passed out by
making an exit wound of 3 cm x 2 cm on
dorso-lateral part of left forearm.
VI. Wound of entrance of .5 cm x .5 cm was
situated on lateral part of right upper thigh.
The projectile passed through soft tissue,
pelvic bone and passed out by making an
exit wound of 2 cm x 1 cm on upper and
lateral part of left thigh.
VII. Wound of entrance of .5 cm x .5 cm was
situated on lateral part of right knee. The
projectile passed through soft tissue and
bone passed out of body by making an exit
wound of 5 cm x 3 cm on antero-medial
part of right knee.
VIII. Wound of entrance of .5 cm x .5 cm was
situated on back of right leg. The projectile
after passing only through subcutaneous
tissue passed out by making an exit
wound of 1 cm x .5 cm on right leg at
middle part.
(C) In the bead and cranial cavity brain was found
pale otherwise normal.
(D) In the chest cavity, injuries were as mentioned
before. Additionally, there was significant blood and
blood clot in the chest cavity otherwise normal. No
abnormality was detected in heart and blood vessels.
(E) In the abdominal cavity, injuries as mentioned
before. Additionally, there was significant blood and
blood clot in abdominal cavity. Stomach contained
pasty food matter about 100 grams. Both small and
large intestine contained digested food matter and
gas. Liver was normal. Injuries in the other organs
were as mentioned before.
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All the injuries mentioned in number I to VIII were
ante mortem in nature caused by firearm. Death was due to
firearm injuries and its complications. He has proved the
prostmortem report which has been marked as Exhibit-12. He has
proved the signature and seal of Dr. Sourav Banerjee, Dr. Rishi
Tuhin Guria and Dr. Sanatan Bhagat upon the postmortem report
which have been marked as Exhibits- 12/1, 12/2 and 12/3
respectively.
In cross-examination, he has deposed that no
bullet/pellet/wad was found/recovered from the dead body. He
cannot say as to what weapon was used but the injuries are
suggestive of usages of rifle of high velocity.
35. P.W.30 (Dr Saurabh Banerjee) was posted as a
Tutor in the Pathology Department, RIMS, Ranchi and on
03.06.2015 he had participated along with other Board Members
in conducting autopsy on the dead body of Sushil Srivastava.
36. P.W.31 (Dr. Rishi Tuhin Guria) was posted as an
Assistant Professor, Department of Medicine, RIMS, Ranchi and on
03.06.2015 he also had participated along with the other Board
Members in conducting autopsy on the dead body of Sushil
Srivastava.
37. P.W.32 (Virendra Thakur) on the order of the Court
has produced the seized articles in connection with Sadar P.S.
Case No. 610/15. He has proved the letters of the Officer-in-
Charge, Sadar P.S. which has been marked as Exhibit-13. He has
-39-
proved the letter showing receipt of the sealed box sent by the
Forensic Science Laboratory which has been marked as Exbibit-
13/1. The sealed boxes were opened and from the first box an AK-
47 rifle sealed in a cloth was found which was marked as Exhibit-
A. The second was a plastic jar in which two magazines and
thirteen rounds of AK-47 cartridges were found. The third was a
sealed plastic box which was marked SFSL No. 687/17 and Exhibit
Nos. B/32 and B/13. The fourth sealed plastic box marked “D”
bears the name of two witnesses. Four sealed packets contained
earth marked 1 to 4 and 4 plastic dubbas marked 5 to 8 and it was
noted that exbibit marked-8 was consumed during explosive
examination. The small sealed box was opened from which four
white colour sealed envelope bearing SFSL No. 797/15, Exhibit
Nos. 1, 2, 3 and 4 have been mentioned. In the other plastic boxes
27 fired shells of 7.62 mm (AK-47) have been mentioned. All the
said exhibit materials were mentioned at Serial Nos. XIV, XV and
XVI of the malkhana register which were marked as Exhibits- XIV,
XIV/1 and XIV/2. The seal of AK-47 rifle was opened and marked
as material Exhibit-I. Two magazines were marked as material
Exhibits-II and II/1. The test fired shells were marked as material
Exhibits- III, III/1, III/2 and III/3. Similarly, five cartridges have
been marked as material Exhibits-IV to IV/10. A piece of iron “L”
shape and a long rope and a clip have been marked as material
Exhibits- V and V/1. The soil and darkened sand particles have
been marked as material Exhibits- VI to VI/3. Three missing fire
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cartridges and one empty shell have been marked as Exhibits- VII
to VII/2. The two empty shells have been marked as material
Exhibits- VIII to VIII/1. The 27 empty shells of AK-47 rifle at the
bottom of which 7.62 was mentioned have been marked as
material Exhibits- IX to IX/26. The piece of the paper on which
SFSL No. 797/15 has been mentioned has been marked as
Exhibit-II.
In cross-examination, he has deposed that no
malkhana number was mentioned on Exhibit-13. In the sealed
cloth of AK-47 rifle there is no signature of any Officer or witness
nor it bears any malkhana number.
38. P.W.33 (Nathuni Prasad Yadav) was posted at
Sadar P.S., Hazaribagh and he had made part investigation of
Sadar P.S. Case No. 610/15. Pursuant to the direction of his
superiors he had submitted charge-sheet against Vikas Tiwary.
The investigation is pending against Vikas Sao, Bablu Thakur, Raj
Singh, Pradeep Paswan and the accomplices of Raj Singh. He had
prepared the inquest report of Md. Kamal and Gayas Khan. He has
proved both the inquest reports which have been marked as
Exhibits- 16 and 16/1.
In cross-examination, he has deposed that he had
taken over the investigation on 15.09.2015 and during the
investigation for 3½ months he had not arrested any accused nor
had he recorded the statements of any witnesses. It is true that he
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had seen the photo of Vikas Tiwary in the newspaper after the
incident.
39. P.W.34 (Kanhu Tudu) was on Hazat duty on
02.06.2015 and on that day he had taken Sushil Srivastava to the
Court of Additional Sessions Judge-II for production and as soon
as he came down from the stairs 8-10 persons came out from a
Bolero vehicle and started shaking hands with Sushil Srivastava.
At that point of time indiscriminate firing started from behind the
Bolero vehicle. Due to the firing Sushil Srivastava and his two
accomplices become injured and they were taken to Sadar Hospital
where they died. The accused persons had exploded a bomb and
had fled away. His statement was recorded by the Police. He had
identified Vikas Tiwary in the Test Identification Parade. He has
identified Vikas Tiwary who was produced through video
conferencing. He has identified an accused in the dock who was
firing on the date of occurrence but he does not know his name.
40. In cross-examination, he has deposed that the
white T-shirt clad accused whom he had identified in the dock was
firing at Sushil Srivastava. Due to the explosion of the bomb
several Police personnel and members of the public suffered
injuries. The rifles of all the Jawans were seized by the S.P. and all
the Jawans had given their written report of the incident. All the
Jawans were suspended by the S.P. It is true that the S.P. had put
pressure that only on giving evidence in Court and identifying the
accused their suspension will be revoked.
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41. P.W.35 (Sanjay Sao) did not support the case of the
prosecution and was declared hostile by the prosecution.
42. P.W.36 (Vijay Sao) has also not supported the case
of the prosecution and has been declared hostile by the
prosecution.
43. P.W.37 (Gopi Sao) has also been declared hostile by
the prosecution.
44. P.W.38 (Sushma Baraik) was posted as an
Executive Magistrate, Ranchi and on 02.06.2015 she was directed
to report to Medica Hospital for preparation of an inquest report.
She had thereafter prepared the inquest report of Sushil
Srivastava. She has proved the inquest report which has been
marked as Exhibit-17.
In cross-examination, she has deposed that the
dead body of Sushil Srivastava was identified by his two sons.
45. P.W.39 (Dinesh Kumar) was posted as Judicial
Magistrate 1st Class in Civil Court, Hazaribagh and he has stated
that on 09.09.2015 on the orders of the Chief Judicial Magistrate,
Hazaribagh he had conducted the Test Identification Parade of
Vikas Tiwary and he was identified by Ajay Kumar Singh, Sitaram
Mishra, Moti Prasad Singh, Kanhu Tudu, Rajeev Ranjan, Dablu
Sharma, Avik Kumar, Birendra Prasad Mehta, Uday Shankar
Paswan, Anuj Kumar Sharma and Vijay Kumar while he was not
identified by Birendra Prasad Singh. He has proved the Test
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Identification Charts which have been marked as Exhibit- 18 to
18/11.
In cross-examination, he has deposed that he does
not remember as to whether on 02.06.2015 the photo of Vikas
Tiwary was published in the newspaper or not. He had seen the
suspect immediately before the TIP was conducted.
46. P.W.40 (Dayanand Azad) was posted as Officer-in-
Charge of Sadar P.S. and on 02.06.2015 at 10:30 A.M. he had
received an information that the prisoners who have been
produced from jail are being shot at. He immediately rushed to the
Court along with superior officers and on reaching the place of
occurrence he had sent the injured Sushil Srivastava, Gayas Khan
and Kamal to Sadar Hospital, Hazaribagh by means of government
and private vehicles. He had thereafter gone towards the place
from where the miscreants had escaped. When he returned back to
the Court premises the fardbeyan of Birendra Prasad Singh was
produced before him after which he took over the investigation of
the case. The Sub-Inspector of Police, Ajit Kumar had produced
two seizure lists before him of the seized materials including an
AK-47 rifle, empty cartridges, Bolero vehicle etc. He had thereafter
inspected the place of occurrence which is on the western side of
the Hazaribagh Court campus in front of the District Mediation
Centre near an unmetalled road. Besides this road on the southern
side a Gulmohar tree is situated. About 20 meters from the place of
occurrence there are two trees of Awla and Karunj and between
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these trees the Bolero vehicle was parked from where the firing was
made and a grenade was also exploded. In the wall of the
Mediation Centre 4-5 marks of firing made by the accused persons
were found. About 50 feet from the Court complex there is a
boundary wall with an iron gate and this was the wall which was
scaled by the accused persons while fleeing away. The AK-47 rifle
was recovered from this place. He had prepared a sketch map of
the place of occurrence and on returning to the Police Station had
instituted a formal FIR. He had thereafter recorded the statements
of Devendra Paswan, Dharmendra Kumar Singh, Rahul Kumar
Singh, Rajmuni Ram, Ajay Prakash Singh, Deepak Kumar Rao,
Sahadat Ansari, Sabir Hussain, Ashok Tiwary, Sallaudin Ansari,
Mansur Ansari, Munna Singh, Bittu Singh and Ashok Tiwary. For
defusing the seized improvised hand grenade an application was
sent to In-charge, B.D.D.S, Police Training Centre, Hazaribagh. In
order to obtain the C.D.R and C.A.F. of mobile numbers
9525543291, 9431549877, 7352888295, 8873699883 and
9006533226 he had sent an application to the Technical Cell of
S.P. He had thereafter recorded the fardbeyan of Aman Srivastava
given to Sriram Sharma on 02.06.2015 at Sadar P.S., Ranchi. He
had arrested Vishal Kumar Singh and Shambhu Nath Tiwary and
from the possession of Vishal Kumar Singh two mobiles were
recovered which were seized and a seizure list was prepared. He
has proved the seizure list which has been marked as Exhibit-3/1.
On 08.06.2015 on the orders of S.P. Hazaribagh he had gone to
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Patna and arrested Santosh Pandey and from his possession three
mobiles were recovered and a seizure list was prepared which has
already been marked as Exhibit-2. He had recorded the
confessional statement of Santosh Pandey in which he had
accepted his involvement in the incident. The confessional
statement of Santosh Pandey has also been proved and marked as
Exhibit-19. He has stated that a spy had disclosed that Rahul Deo
Pandey is also involved as he has close acquaintance with Vikas
Tiwary as when Sushil Srivastava was being taken for production
Rahul Deo Pandey had informed Vikas Tiwary and after the
murder was committed Vikash Tiwary had informed Rahul Deo
Pandey about the same. On perusal of the call details of the mobile
of Vikas Tiwary bearing no. 7085127548 it is established that after
the incident Vikas Tiwary had first and foremost called Rahul Deo
Pandey in the mobile no. 7352960781 at 10:53 A.M. and the call
duration was of 39 seconds. After the order of Police remand Rahul
Deo Pandey was brought to the Police Station from the Jail where
his confessional statement was recorded and he had admitted his
role as a conspirator. He had arrested Dilip Sao and had recorded
his confessional statement. The said confessional statement has
been proved and marked as Exhibit-2. He had sent blood-stained
earth, blood, pellet, empty cartridges and the explosive powder
from inside the bombs samples to the FSL, Ranchi. On receiving an
information that the main accused Vikas Tiwary is staying in Delhi
he had gone to Delhi along with Sub-Inspector, Akil Ahmed. On
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reaching Delhi, he came to know that Vikas Tiwary has been
arrested by the Special Cell of Delhi Police and that he has been
taken to Patiala House Court. He had submitted an application to
the Court and after getting the permission of the Court Vikas
Tiwary was interrogated for twenty minutes and he had accepted
his involvement in the conduct of murders. He had arrested Vikas
Tiwary and the Court had granted transit remand for two days. He
has stated that Vikas Tiwary was brought to Hazaribagh and he
was given on Police remand after which in course of inquiry he had
recorded the confessional statement of Vikas Tiwary. He has
proved the confessional statement of Vikas Tiwary which has been
marked as Exhibit-21. The forwarding report of Vikas Tiwary has
been proved and marked as Exhibit-22. He had thereafter
submitted charge-sheet against Vishal Kumar Singh, Santosh
Pandey, Rahul Deo Pandey, Dilip Sao and Shambhu Nath Tiwary
u/s 341, 326, 323, 307, 302, 120B/34 IPC, Sections 25(1-A)/25(1-
AA)/26/27/35 of the Arms Act and Section 3/4/5 of the
Explosives Substance Act. He had immediately started a
supplementary investigation and in course of the same he had
recorded the statements of Avik Kumar, Aman Srivastava, Upendra
Kumar Singh, Sabana Khatoon, Sahin Pravin, Sanjay Sao, Gopi
Sao, Vijay Sao, Dablu Sharma, Rajesh Kumar Singh, Sitaram
Mishra, Mohi Prasad Singh, Ajay Kumar Singh, Vijay Kumar, Anuj
Kumar Sharma, Kanhu Tudu, Uday Shankar Paswan, Rajeev
Ranjan and Birendra Prasad Mehta. He had submitted an
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application to the Court for analysis of the seized AK-47 rifle by the
Sergeant Major and also submitted an application to the Chief
Judicial Magistrate, Hazaribagh for holding a Test Identification
Parade of Vikas Tiwary and Dilip Sao. A Test Identification Parade
was held and 11 persons had identified Vikas Tiwary. Thereafter he
had obtained the postmortem report of Gayasuddin Khan and Md.
Kamal. On account of his transfer to Barkata Thana he had
handed over the charge of investigation to the Officer-in-Charge,
Jitendra Singh who in turn had given the charge of the
investigation to Sub-Inspector, Nathuni Prasad Yadav. He has
proved the application given to the CJM, Hazaribagh for holding
the Test Identification Parade of Vikas Tiwary and Dilip Sao which
has been marked as Exhibit-3.
In cross-examination, he has deposed that it is true
that he reached the Civil Court Hazaribagh after the incident had
occurred. When he had reached the place of occurrence at that
point of time the Dy. S.P., Inspector and other Police Personnel and
staffs of the Civil Court, Lawyers and several independent
witnesses were present. It is a fact that after he had reached the
place of occurrence none of the persons present had disclosed the
name of the assailants who had fled away. A rumour was floating
around that the murders were executed by the gang members of
Vikas Tiwary. He had received the fardbeyan on 12:15 P.M. along
with the seizure list. It is a fact that from the Bolero vehicle some
posters were recovered in which it was written that the murder of
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Kishore Pandey has been avenged with the name of Vikas Tiwary in
the poster with a further sentence “to be continued….”. This was
the basis for making Vikas Tiwary an accused. He had not made
any investigation with respect to the recovery of posters nor he had
done the photography of the Bolero vehicle. He had not taken the
finger print of the AK-47 rifle nor had he taken the finger print of
Vikas Tiwary. During investigation he had not recorded the
statement of Gandhauri Prasad. It is true that in the FIR it has
been mentioned that two persons had participated in the incident
“one was firing with an AK-47 rifle while the other had thrown a
grenade”. It is also true that after the incident the photograph of
Vikas Tiwary was frequently published in the newspapers. He had
personally arrested Vikas Tiwary from Delhi and he had identified
him. Vikas Tiwary is not very tall and has a healthy figure and was
not thinly built. In the fardbeyan there is no name of any
independent witness but the same contains the name of only Police
personnel. From 02.06.2015 to 02.09.2015 he had not received
any written report from the family members of Sushil Srivastava.
The son of Sushil Srivastava namely, Aman Srivastava upon the
death of Sushil Srivastava had recorded a fardbeyan at Medica
Hospital, Ranchi which has been mentioned in the case diary. On a
perusal of the fardbeyan it appears that Aman Srivastava had gone
to meet his father at Hazaribagh Civil Court but no information in
that regard was given to him till 02.09.2015. The fardbeyan of
Aman Srivastava does not mention Vikas Tiwary as the person who
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was shooting with an AK-47 rifle and he had merely stated about
the firing which had taken place. The fardbeyn of Aman Srivastava
does not also name Shambhu Nath Tiwary, Santosh Pandey, Rahul
Deo Pandey, Dilip Sao and Vishal Singh. It also does not mention
that the brother of Aman Srivastava namely, Avik Srivastava was
also with him on the date of occurrence. During investigation he
had taken into consideration the fardbeyan of Aman Srivastava. He
had not been able to find out the registered owner and the driver of
the Bolero vehicle. In course of investigation, he had come to know
that a shooter by the name of Raj Singh was also involved in the
shoot out along with the other accused persons. The two mobiles
mentioned at para 83 of the case diary were not seized by him.
47. P.W. 41 (Jitendra Singh) has stated that the
incident is of 02.06.2015 when Sushil Srivastava and two other
persons were murdered at Civil Court premises, Hazaribagh. The
first Investigating Officer had submitted charge-sheet against
Vishal Kumar Singh, Santosh Pandey, Rahul Deo Pandey, Dilip
Sao and Shambhu Nath Tiwary while the second Investigating
Officer had submitted charge-sheet against Vikas Tiwary. He had
taken over the investigation from Nathuni Prasad Yadav. On
08.03.2016 he had received an information that Vishal Sao was in
prison at Tenughat Jail and such information was found to be
true. He has stated that on 10.03.2016 he had received a secret
information that shooter Raj Singh who was involved in the episode
was in Sultanpur (U.P.) Jail and when he reached Sultanpur the
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Jail Superintendent had disclosed that for administrative reasons
Raj Singh has been shifted to Bareilly Jail. He had submitted an
application before the CJM, Hazaribagh for remand of the accused
Raj Singh. He had obtained the test report of the seized AK-47 rifle,
magazine, 13 live cartridges, pin, lever of the grenade which have
already been marked as exhibits. He had obtained the sanction for
prosecution from the District Magistrate-cum-Deputy
Commissioner, Hazaribagh which has been proved and marked as
Exhibit-25. He had recorded the statement of Vikas Sao in
Hazaribagh Jail in which he had disclosed about his friendship
with Vikas Tiwary. He had submitted charge-sheet against Vikas
Sao.
In cross-examination, he has deposed that in
course of investigation he had recorded the statement of Vikas Sao.
48. P.W.42 (Daud Herenj) has appeared before the
Court to state about the Bolero vehicle which was seized by the
Police. The Bolero vehicle has been kept in the Police Station
premises and its condition has become awful. He has produced the
report of the Officer-in-Charge regarding the condition of the
Bolero vehicle which has been marked as Exhibit-26 and two
photographs of the vehicle marked as X and X/1 for identification.
49. The statements of the accused were recorded u/s
313 Cr.P.C., in which, they have denied their complicity in the
commission of the murders.
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50. The defence has examined eight witnesses in
support of its case.
51. D.W.1 (Sushila Devi) has stated that on 02.06.2015
at 6:00 A.M. she had come to Civil Court, Hazaribagh to meet her
husband Swatantra Raj Gupta who was in jail. She was sitting on
a platform near the Gulmohar tree waiting for her husband when
at 10:00 A.M. she heard the sound of firing. The firing was going
on at a distance of 5-10 meters from where she was sitting. The
person who was firing was tall and thinly built whom she could
recognize. The three accused persons who were produced through
video conferencing were not the persons who were firing. A bomb
was also exploded after which there was a pandemonium.
Everyone including the Police personnel had fled away.
In cross-examination, she has deposed that she
does not know in which case her husband was in custody. On the
date of occurrence, she had come in a train from Haliapur, Uttar
Pradesh.
52. D.W.2 (Santosh Pandey) has stated that he stays at
Patratu with his family and he runs a grocery shop. His father is a
Railway employee. He has no connection with Bhola Pandey,
Kishore Pandey and Vikas Tiwary. He does not know Vikas Sao,
Bablu Thakur, Suman Singh, Dilip Sao, Vishal Singh, Deepak
Dhobi, Pradeep Paswan, Sunil Dhobi and Shambhu Tiwary. It is a
fact that on 02.06.2015 he was not present in Civil Court,
Hazaribagh. On 24.05.2015 he was in his village at Pandey Rati in
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Patna District along with his family on account of the marriage of
his niece. The marriage was solemnized on 02.06.2015 and he and
his family members were present at Pandey Rati. After the bedai
had taken place at 8:00 A.M. on 02.06.2015 he and his family
members had gone to his cousin sister’s place at Jalpura and he
had stayed for 5-6 days when Police had arrested him and he was
brought to Hazaribagh. He has stated that he does not know either
Sushil Srivastava or Deepak Kumar Rao.
In cross-examination, he has deposed that he does
not have any documentary evidence to prove that on 02.06.2015
he was at Pandey Rati.
53. D.W.3 (Yogendra Pd. Pandey) is the father of
Santosh Pandey who has stated that on 24.05.2015 he and his
family members had gone to Pandey Rati to attend the marriage
ceremony of his granddaughter Rupa Kumari which was
solemnized on 01.06.2015. During marriage on 01.06.2015 his son
Santosh Pandey was with him. After the bedai ceremony of his
granddaughter she was taken to village Jalpura where they stayed
for five days. On 07.06.2015 while they were sleeping Police had
come and had taken away his son Santosh Pandey. His son
Santosh Pandey runs a General Store at Patratu.
In cross-examination, he has deposed that he
cannot produce any documentary evidence to prove that on
02.06.2015 his son Santosh Pandey was at Pandey Rati.
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54. D.W.4 (Om Prakash Rana) has stated that he works
as an Advocate Clerk (Munshi) in Civil Court, Hazaribagh. It was
morning Court on 02.06.2015 and he had come to Civil Court,
Hazaribagh along with his father. On that day an incident of firing
had taken place which he had witnessed. The person who was
firing was tall and thinly built. Due to the firing, there was a chaos
and everyone fled away. He has stated that Rahul Deo Pandey and
Santosh Pandey who were produced through video conferencing
were not the persons who were either firing or were fleeing away.
He has failed to identify Vikas Tiwary who was produced through
video conferencing. He has also not identified Vishal Singh in the
dock.
In cross-examination, he has deposed that he does
not have an Advocate Clerk license.
55. D.W.5 (Sujit Kumar Singh) has stated that he
works in Haryana Transport Company of India as a Manager and
the business is owned by Vishal Singh. On 02.06.2015 at 9:30
A.M. Vishal Singh had come to the office as usual and stayed till
4:00 P.M. He had shown the accounts for the period 01.05.2015 to
31.05.2015 to Vishal Singh who had signed on them. He has
produced the bills which have been marked as Exhibit- C to C/16
with objection. He has produced the second set of bills from
01.03.2015 to 31.03.2015 bearing the signature of Vishal Singh
which have been marked as Exhibits- D to D/15 with objection.
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In cross-examination, he has deposed that he is
working with Vishal Singh for the last ten years. There is no
attendance register in the firm in which he works.
56. D.W.6 (Vishal Singh) has stated that he stays at
Ratan Heights, Morabadi along with his family. In Ranchi he has a
business of transport as well as a Motorcycle Showroom. On
02.06.2015 he was in his office at Haryana Transport Company of
India from 9:00-9:30 A.M. to 5:00 P.M. On the same day he had
signed on 33 bills furnished by his employee Sujit Kumar Singh.
He has proved the bills which have been marked as Exhibits- E to
E/32. He has also proved four pages of the ledger which has been
marked as Exhibits- F to F/3. He does not know Bhola Pandey,
Kishore Pandey and Vikas Tiwary of Patratu. He does not know
Sushil Srivastava.
In cross-examination, he has deposed that in his
transport company office there is no attendance register.
57. D.W.7 (Dilip Sao) has stated that on 02.06.2015 he
was at Patratu along with his family. He does not know Bhola
Pandey, Kishore Pandey, Vikas Tiwary, Santosh Pandey and Vishal
Singh. He also does not know Sushil Srivastava.
In cross-examination, he has deposed that he had
not disclosed before the Police that he is involved in the business of
vegetables.
58. D.W.8 (Pradip Kumar Das) has stated that on the
strength of a letter issued by the Superintendent, Jayaprakash
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Narayan Central Jail, Hazaribagh he has produced the register in
connection with S.T. No. 141/2016. He has proved the letters
which have been marked as Exhibits- G, H and I. The register
indicates that Rahul Deo Pandey was remanded to the Jail on
01.05.2015 in connection with Chauparan P.S. Case No. 68/2005
and on 02.06.2015 he was in jail. The gate register shows that on
02.06.2015 Rahul Deo Pandey had not gone outside the Jail. The
relevant page of the gate register has been proved and marked as
Exhibit- J.
59. It has been submitted by Mr. Surendra Singh,
learned Senior Counsel for the appellants Vikas Tiwary and
Santosh Pandey in Criminal Appeal (DB) No. 597 of 2020 and the
appellant no. 2 Rahul Deo Pandey in Criminal Appeal (DB) No. 599
of 2020 that the evidence of the prosecution witnesses are vague,
inconsistent, incoherent and is primarily based on assumption
regarding the participation of the appellants in the ghastly murders
which had taken place inside the campus of a revered institution.
The discrepancy and contradictions in the evidence of the
witnesses can be fathomed from the fact that some say that the
assailants were 2-3 in numbers while the others speak of 8-10
assailants but the manner of occurrence suggests that a grenade
was hurled and firing was made from AK-47 rifle which would
conclusively prove that the increase in the number of assailants as
stated by some of the witnesses are an exaggerated version. The
prosecution has tried to build its edifice on a conspiracy theory
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hatched by the accused persons and the appellant Rahul Deo
Pandey has also been brought within the purview of conspiracy
though admittedly he was lodged in Jayaprakash Narayan Central
Jail in connection with a case. The conspiracy theory so far as the
appellant Rahul Deo Pandey is concerned, stems from a purported
call details of mobiles owned by Vikas Tiwary and Rahul Deo
Pandey and a conversation between them which lasted for 39
seconds and which took place immediately after the mayhem was
caused in the Civil Court premises, Hazaribagh. It has been
submitted that there is no legal evidence on record to suggest that
Vikas Tiwary and Rahul Deo Pandey ever owned mobile phones or
that they spoken to each other over the said mobile phone. There is
no witness who has stated about these appellants having mobile
phones in their possession and the most astonishing thing is that
no mobiles were seized from their possession. Even the CDR has
not been proved by the prosecution. This would lead to an adverse
inference being drawn against the prosecution. Reference in such
context has been made to the case of “Tomaso Bruno & Another
Versus State of Uttar Pradesh”, reported in (2015) 7 SCC 178. Mr.
Singh, learned Senior Counsel has while referring to the evidence
of P.W.40, the first Investigating Officer has submitted that it was
P.W.40 who was informed by a spy regarding the alleged
conspiracy between Vikas Tiwary and Rahul Deo Pandey but
absence of the spy as a witness in the trial would submerge the
evidence of P.W.40 and would bring it within the realm of hearsay
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evidence. Moreover, since it is a statement made during the course
of investigation it will be hit by Section 162 Cr.P.C. None of the
evidence produced by the prosecution establishes meeting of minds
of these two appellants and, therefore, the charge of conspiracy
becomes unsustainable.
Some of the witnesses have mentioned about the
involvement of 8-10 assailants in the occurrence which is falsified
by the prompt lodging of the fardbeyan wherein the informant who
has been examined as P.W.22 has described the assailant as tall
and thinly built and the second miscreant had exploded a bomb
after which both made good their escape by scaling the wall. The
evidence of P.W.22 is also supported by P.W.2 who has stated that
only 2-3 assailants were involved in the occurrence. The
promptness in lodging an FIR being the first version of an incident
is construed to be the truthful version obliterating a well thought
out version. Reference has been made to the case of “Jai Prakash
Singh versus State of Bihar and Another“, reported in (2012) 4 SCC
379. The evidence of P.W.2 and P.W.22 who have given a
contradictory version to the other witnesses regarding the number
of assailants’ presents has not been challenged by the prosecution
and their evidence is binding on the prosecution. According to the
learned Senior Counsel the judgment in “Virendra versus State of
Madhya Pradesh” reported in AIR 2022 SC 3373 is a pointer to the
said fact. He has further submitted that the evidence of the
ballistic expert who has been examined as P.W.26 validates the
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evidence of P.W.2 and P.W.22 that not more than two rifles have
been used in perpetrating the assault. When the direct evidence is
not supported by expert evidence it is difficult to convict the
accused based on such evidence and reliance has been placed in
the case of “Ram Narain versus The State of Punjab” reported in AIR
1975 SC 1727. Mr. Surendra Singh, learned Senior Counsel has
submitted that the evidence of P.W.7, P.W.11, P.W.13, P.W.14,
P.W.15, P.W.16, P.W.17, P.W.18 and P.W.34 are liable to be
discarded on account of the fact that though they were available
for questioning on 02.06.2015 their statements were not recorded
by the Investigating Officer and ultimately their statements were
recorded on 05.09.2015 and 06.09.2015 which has a time gap of
more than three months from the date of occurrence and no
plausible explanation has been furnished by the prosecution with
respect to such inordinate delay. All these witnesses were
suspended, their arms were seized and their written statements
were taken but all those statements have been suppressed by the
prosecution for reasons best known to them. The delay in
recording of statement of material witnesses will be fatal to the
prosecution case and reliance has been placed in the case of
“Ramesh and Another versus State of Karnataka” reported in (2024)
9 SCC 169.
With respect to the identification of the appellant
Vikas Tiwary by the Police witnesses are concerned, there has been
consistent evidence that the photograph of Vikas Tiwary was
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published in the newspaper a day after the incident and on
subsequent dates as well and viewed in such backdrop the
identification in the Test Identification Parade as well as in the
dock becomes a farcical exercise. Reference has been made to the
case of “Seeni Nainar Mohammed and Others versus State, Rep. by
Deputy Superintendent of Police” reported in AIR 2017 SC 3035 and
“Ravi @ Ravichandran versus State Rep. by Inspector of Police”
reported in AIR 2007 SC 1729.
P.W.34 who was a constable has revealed that the
suspended Police personnel were pressurized to identify the
accused otherwise their suspension would not be revoked. The
witnesses have also admitted to have seen the appellant Vikas
Tiwary in the Police Station while he was on Police remand.
Therefore, the identification of Vikas Tiwary becomes a tainted
piece of evidence.
Mr. Singh, learned Senior Counsel has extensively
referred to the evidence of P.W.24 Avik Srivastava who is the son of
the deceased Sushil Srivastava and who has claimed to be present
with his father when such outrageous incident had taken place.
This witness has stated about the presence of 8-10 assailants
which however as stated above has been contradicted by some of
the witnesses. A new scenario has emerged in the evidence of
P.W.24 to the effect that Vikas Tiwary had hurled a bomb and had
also resorted to firing which has not been stated by any of the
other prosecution witnesses. Even after an incident of such a
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magnitude P.W.24 did not inform his relatives and such conductmakes his claim to be an eye-witness suspicious. Despite having
seen his father gunned down in front of his own eyes and despite
claiming that Vikas Tiwary was the main assailant he had not
lodged any case immediately after 02.06.2015 but had lodged a
written report on 03.09.2015 which report has been suppressed by
the prosecution. The statement of P.W.24 was recorded by the
Investigating Officer for the first time on 09.09.2015 which again is
a dent in the prosecution case. The evidence of P.W.25 has been
banked upon much by the learned trial court but the presence of
P.W.25 in Court and consequently having seen the incident is itself
in grave doubt on account of the fact that P.W.25 had a Court
appearance on 02.08.2015 but his counsel had moved an
application for exemption from personal appearance on the ground
that he was sick. Moreover, P.W.25 in his cross-examination has
deposed that he had arrived at the place of occurrence after the
incident had already taken place. This witness was a close
associate of Sushil Srivastava and the motive to implicate the
appellant becomes apparent. He has developed his story during his
evidence of the appellants being armed with AK-47 rifles and firing
at the deceased but in course of his statement recorded during
investigation no such assertion had been made by him.
Improvements made for the first time in Court falsifies such
testimony and this view is well settled in the case of “Darshan
Singh versus State of Punjab” reported in (2024) 3 SCC 164.
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“Ankush Maruti Shinde and Others versus State of Maharashtra“
reported in AIR 2019 SC 1457 and “Ajmer Singh and Others versus
State of Punjab” reported in AIR 1977 SC 1078.
It has been submitted that none of the pamphlets
supposedly seized from inside the Bolero vehicle were exhibited
and no reliance can be placed on the same. So far as the
confessional statements are concerned, they are inadmissible in
evidence and are hit by Section 25 of the Evidence Act and such
assertion is cemented by the judgment rendered in the case of
“Rahul versus State (NCT of Delhi)” reported in (2023) 1 SCC 83.
The case of the prosecution being unconvincing in absence of any
clinching material in its support all these appellants according to
Mr. Singh, learned Senior Counsel deserves to be acquitted from
the charges levelled against them.
60. Mr. Anoop Prakash Awasthi, learned counsel
representing the appellant Vishal Singh @ Vishal Kumar Singh has
adopted the lead argument advanced by Mr. Surendra Singh,
learned Senior Counsel and has supplemented it by submitting
that the appellant is not named in the First Information Report and
rightly so as the appellant on the date of occurrence was in his
office at Ranchi which is borne out from the various bills which
have been exhibited by the defence. The plea of alibi has not at all
been appreciated by the learned trial court. It has been submitted
that no Test Identification Parade was never conducted with
respect to Vishal Kumar Singh and the prosecution has instead
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relied upon the dock identification after an inordinate delay of
more than three years. Such identification cannot form the basis
for conviction. Reliance has been placed in the case of “Kanan and
Others versus State of Kerala” reported in AIR 1979 SC 1127. Mr.
Awasthi has also referred to the case of “Jaspal Singh alias Pali
versus State of Punjab” reported in AIR 1997 SC 332.
It has been submitted that the charge of conspiracy
is wholly unfounded and not supported by any credible evidence.
The confessional statement of Vikas Tiwary, Santosh Pandey and
Dilip Sao have been relied upon by the prosecution to bring home
the charge u/s 120B of the IPC and absence of any discovery
makes such confession inadmissible in evidence. None of the three
Investigating Officers being P.W.33, P.W.40 and P.W.41 have
deposed of having collected any material which would point to the
deliberation, planning or agreement on the part of the appellant to
commit such offence. Some of the witnesses though have stated
about the alleged presence of the appellant at the place of
occurrence but mere presence ipso facto does not establish
participation in a conspiracy. Mere suspicion however grave cannot
take the place of proof. Mr. Awasthi has submitted that admittedly
no witness has attributed any overt act against the appellants of
either taking part in firing or in exploding a bomb. As held in “R.
Venkatkrishnan versus Central Bureau of Investigation” reported in
(2009) 11 SCC 737, the prosecution must demonstrate not only
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existence of unlawful agreement but also the active participation of
the accused therein.
The prosecution according to Mr. Awasthi has
heavily relied upon the testimonies of the Police personnel and the
solitary injured witness P.W.3 but P.W.3 has stated that on
account of suffering a firearm injury he had become unconscious
and could not identify the assailants. The evidences of the Police
witnesses are not credible in view of their apparent contradictions
and do not speak of the appellant Vishal Kumar Singh as a
participant in the shootout. The involvement of Vishal Kumar
Singh in the offence alleged is further eroded by the fact that the
learned trial court had not found him guilty either under the Arms
Act or under the Explosive Substance Act. This would further
suggest that purely on the basis of suspicion not backed up by any
cogent material the appellant has been convicted. Mr. Awasthi has
submitted that in absence of any conclusive circumstances’ as
demonstrated by him the appellant Vishal Singh @ Vishal Kumar
Singh deserves to be acquitted from the charges levelled against
him.
61. Mr. A.K. Kashyap, learned Senior Counsel
representing the appellant no. 1 Dilip Sao in Criminal Appeal (DB)
No. 599 of 2020 has also adopted the submissions of Mr. Surendra
Singh, learned Senior Counsel but has put forward some
additional grounds particularly with reference to the appellant
Dilip Sao.
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It has been submitted that the appellant Dilip Sao
has not been named in the First Information Report and was also
not put on Test Identification Parade to ascertain as to whether he
was seen at the place of occurrence or not. No recovery has been
effected consequent to the confessional statement of Dilip Sao and,
therefore, such confessional statement has no evidentiary value as
per Section 25 of the Evidence Act. The alleged recovery of a bike
and mobile were neither produced nor proved as material exhibits.
P.W.2, P.W.3, P.W.4, P.W.7, P.W.22 and P.W.34 have not claimed
to identify any accused who were on representation. P.W.25 as per
his evidence does not appear to be an eyewitness. So far as P.W.11,
P.W.13, P.W.14, P.W.15, P.W.16, P.W.17 and P.W.18 are
concerned, they have claimed to have identified the accused
persons in the dock for the first time after more than 2½ years
from the date of the occurrence and such identification in absence
of any corroboration becomes fallible. It has been submitted that
Aman Srivastava the son of the deceased Sushil Srivastava had
given his fardbeyan on 02.06.2025 at Sadar P.S., Ranchi but the
prosecution has suppressed the said fardbeyan though as per the
evidence of P.W.40 it would be apparent that the said fardbeyan
does not contain the name of any person involved in the incident.
It also does not mention that Avik Srivastava was present at the
place of occurrence. The appellant in his evidence as D.W.7 has
categorically denied his presence at the place of occurrence. Mr.
Kashyap, learned Senior Counsel has stressed much upon the fact
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that the appellant Dilip Sao has been convicted u/s 302 of the IPC
with the aid of Section 120B of the IPC but there is no evidence on
record to prove the conspiracy supposedly hatched by the
appellant in concert with the other co-accused persons. In support
of his various contentions, learned Senior Counsel has referred to
the cases of “Harbeer Singh versus Sheeshpal and Ors.” reported in
AIR 2016 SC 4958, “Ganesh Bhavan Patel and Another versus State
of Maharashtra” reported in (1978) 4 SCC 371, “Maruti Rama Naik
versus State of Maharashtra” reported in (2003) 10 SCC 670. “Jagjit
Singh Alias Jagga versus State of Punjab” reported in (2005) 3 SCC
689, “Mohanlal Gangaram Gehani versus State of Maharashtra“
reported in (1982) 1 SCC 700, “Thimareddy and Others versus State
of Karnataka” reported in (2014) 13 SCC 408 and “Hari Nath and
Another versus State of U.P.” reported in (1988) 1 SCC 14.
62. Mr. B.M. Tripathi, learned Senior Counsel
appearing on behalf of the victim Avik Srivastava has submitted
that the Court premises was made the battle ground for settling
personal scores. The incident which had taken place in broad
daylight in the citadel of justice by using sophisticated and
advanced weapons like AK-47 rifle and hand grenade was an
attempt to debilitate the institution itself and such brazen act has
to be dealt with strongly. Such act has had a cascading effect on
the litigants and witnesses intending to depose freely and without
fear. The evidence of the witnesses in the backdrop of such a
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horrible crime should be viewed with a ring of faith and
trustworthiness.
It has been submitted that since indiscriminate
firing took place from sophisticated firearms it would be but
natural that the persons present took shelter in order to avoid
being hit by any rogue bullets and in such circumstances, there is
bound to be some variance in the ocular evidence. P.W.2 has given
the minutes details of the incident and he has identified only Rahul
Deo Pandey whom he had seen from before and if the Police
witnesses were influenced the name of all the accused persons
P.W.2 would have stated of identifying all. The evidence is natural
and without any concoction. P.W.4 has identified only Vikas Tiwary
whom he had seen running from behind. P.W.11, P.W.13, P.W.14,
P.W.16, P.W.17 and P.W.18 have identified four accused persons
while P.W.24 has identified Vikas Tiwary and Santosh Pandey.
P.W.7 on the other hand has identified Vikas Tiwary only. Mr.
Tripathi, learned Senior Counsel has submitted that the defence
cannot gain any advantage by putting stress on the photograph of
Vikas Tiwary being published in the newspaper as neither any
newspaper was produced in Court nor its contents exhibited. An
incident of such magnitude was bound to have prominently
featured in the newspapers and that by itself would not degenerate
the case of the prosecution into oblivion by discarding the evidence
of such eye-witnesses. So far as Santosh Pandey and Rahul Deo
Pandey are concerned, they have been identified by several Police
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personnel and their photographs were also not published in the
newspaper. An alien procedure not akin to criminal jurisprudence
was adopted deliberately in order to create a doubt. Moreover,
when the things which are not before the Court it is well settled
that the Court should not take cognizance of the same. Mr.
Tripathi, learned Senior Counsel for the victim has copiously
referred to the evidence of P.W.24 the son of Sushil Srivastava who
according to him has given a vivid description of the incident and
has identified Vikas Tiwary, Santosh Pandey, Vikas Sao, Deepak
Dhobi, Dilip Sao, Sunil Dhobi, Vishal Singh and others who had
orchestrated the murderous attempt upon his father. He has also
stated about the usages of bombs and AK-47 rifle as well as pistols
by the accused persons. The evidence of P.W.24 in consonance
with the evidence of the prosecution witnesses regarding the
manner of occurrence and such evidence does inspire confidence
and is wholly reliable and trustworthy. Countering the
submissions advanced by the learned counsels for the appellants
that P.W.24 is related to the deceased hence interested witness
submission has been advanced that merely being related to the
deceased would not make such evidence doubtful, more so when
he was present at the place of occurrence and nothing has been
unearthed from his evidence which would show his evidence as
vindictive or exaggerated and designed to frame the appellants.
Reference has been made to the case of “Shio Shankar Dubey and
Others versus State of Bihar” reported in (2019) 6 SCC 501. In reply
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to the submissions advanced by the learned counsels for the
appellants that the fardbeyan of Aman Srivastava does not disclose
the name of Avik Srivastava as being present and also does not
name Vikas Tiwary as the assailant Mr. Tripathi, learned Senior
Counsel has submitted that the presence of P.W.24 has been
corroborated by P.W.4, P.W.29 and P.W.38. A First Information
Report is not an encyclopaedia having the minutes of details and
absence of the name of P.W.24 cannot be perceived to be the gospel
truth particularly in view of the presence of P.W.24 having been
noted by the witnesses who were present at the place of
occurrence. Mr. Tripathi has also copiously referred to the evidence
of P.W.25 whose evidence is of a sterling character and which the
defence has failed to contradict or demolish. The application u/s
317 Cr.P.C. itself proves the presence of P.W.25 in the Court
premises. The fact that Rahul Deo Pandey was not identified by
P.W.25 puts his evidence on a higher pedestal regarding its
truthfulness and credibility. In support of his various contentions
Mr. Tripathi has relied upon the case of “Mukesh and Another
versus State (NCT of Delhi) and Others” reported in (2017) 6 SCC 1,
“Sidhartha Vashisht alias Manu Sharma versus State (NCT of Delhi)”
reported in (2010) 6 SCC 1, “Pal Singh and Another versus State of
Punjab” in SLP (Crl.) No. 191 of 2014, “Dalbir Singh versus State of
Haryana” reported in (2008) 11 SCC 425, “Girja Prasad (Dead) By
L.R.S versus State of M.P.” reported in (2007) 7 SCC 625, “State of
Rajasthan versus Arjun Singh and Others” reported in (2011) 9 SCC
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115, “Raja versus State by the Inspector of Police” reported in(2020) 15 SCC 562 and “Yogesh Singh versus Mahabeer Singh and
Others” reported in (2017) 11 SCC 195.
63. Learned Spl. P.P. / A.P.P in the respective cases
have adopted the arguments advanced by Mr. B.M. Tripathi,
learned Senior Counsel for the informant.
64. We have heard the learned counsels for the
respective sides and have also perused the Trial Court Records.
65. Sushil Srivastava, an interstate criminal was lodged
in Lok Nayak Jayaprakash Narayan Central Jail, Hazaribagh
serving out his sentence in a case of murder and he was a man of
antecedents. On the fateful day of 02.06.2015 he was to be
produced before two Courts in Hazaribagh and after the formalities
of production was completed he came downstairs, guarded by
several Police personnel specially deputed for his security and in
course of exchanging greetings with his followers and accomplices
an indiscriminate firing started specially targeting Sushil
Srivastava and an improvised grenade was also exploded causing
confusion and chaos and taking advantage of such pandemonium
the accused persons made good their escape by scaling a wall in
course of which an AK-47 rifle fell down which was subsequently
seized. The scenario which emerged thereafter revealed that two of
the accomplices of Sushil Srivastava namely, Gayas Khan and
Kamal Khan died and while Sushil Srivastava was referred to
RIMS, Ranchi from Sadar Hospital, Hazaribagh he also
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succumbed to his injuries subsequently. The body of Sushil
Srivastava was found riddled with bullets which itself suggests that
he was the main target of the assailants and the death of his
accomplices appear to be collateral damages. The narration of
events by the eyewitnesses speak of a meticulous planning to
eliminate Sushil Srivastava and the Civil Court premises of
Hazaribagh was chosen as a soft spot for executing such devious
intention. The act of the assailants to execute their plan in the
citadel of justice is outrageous and insane and speaks of a demonic
mindset as if the judicial institution is their fiefdom meant for
settling personal scores.
Admittedly, though the incident had occurred
leading to the death of three persons but it is to be discerned by
dissecting the evidence on record as to whether the appellants were
the assailants and/or the conspirators to the murders so
committed.
66. The witnesses of the prosecution can be divided
into Police witnesses and non-police witnesses. We have
deliberately referred to P.W.24 and P.W.25 as non-police witnesses
and not independent witnesses since the defense has tried to
create a doubt over their status of being independent witnesses
since P.W.24 is the son of the deceased while P.W.25 was an
associate of the deceased.
67. The Police witnesses who claimed themselves to be
the eyewitnesses have given different versions with respect to the
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number of assailants who took part in the incident in various
capacities. P.W.1 had arrived at the place of occurrence on account
of an information received from the Officer-in-Charge, Sadar P.S.
but by that time the incident had already taken place. P.W.1 is,
therefore, a hearsay witness. P.W.2 was posted on security duty
within the Civil Court premises and he has stated about seeing 2-3
persons coming out from a Bolero vehicle and spraying Sushil
Srivastava and his two associates with bullets from AK-47 rifles.
P.W.3 in course of firing had sustained a bullet injury and he had
become unconscious. P.W.3 has been candid enough to admit that
he had not identified the assailants and he is unaware about what
happened after he became unconscious. The tenor of evidence of
P.W.4 speaks of a few assailants may be 2 or 3 who had covered
their faces with black cloths and he in his cross-examination has
deposed that he had seen only one person fleeing away. P.W.5 was
one of the members of the Special Force deputed for security of the
prison van. He was present at the place when the incident had
taken place but he has failed to identify any of the accused
persons. P.W.6 had reached the place of occurrence after the
incident had already taken place. P.W.7, P.W.11, P.W.16, P.W.17,
P.W.18 and P.W.34 have stated about the presence of 8-10 persons
who had made a concerted assault with firearms upon Sushil
Srivastava and had also exploded a bomb. The informant who was
examined as P.W.22 and who is also an eyewitness has stated
about 1-2 persons taking part in the firing. The version of the
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above noted witnesses can be summarized to mean that P.W.2 and
P.W.22 have stated about the presence of 2-3 persons and the
evidence of P.W.4 can be construed to mean a limited number of
assailants while P.W.7, P.W.11, P.W.16, P.W.17, P.W.18 and
P.W.34 have stated about the presence of 8-10 assailants. The
presence of 8-10 assailants taking part in the mayhem seems to
be, in the surrounding circumstances of the case, a highly
exaggerated version. We say this because none of the aforesaid
witnesses have stated about all the 8-10 persons scaling the wall
and making good their escape. It has been consistently stated that
an assailant with an AK-47 rifle fled away by jumping the wall and
in course of such act his AK-47 rifle fell down which was later on
seized. It is not the case of the prosecution that these witnesses
immediately on commencement of the incident had fled away from
the place of occurrence; rather all had taken shelter and / or
position to counter the offensive and it is indeed surprising that
none had stated about how the rest of the participants in the firing
barring the assailants who scaled the wall managed to flee away.
The other aspect of the matter is that when a conspiracy has been
hatched as would appear from the evidence of the witnesses to
eliminate Sushil Srivastava and even if we accept that 8-10
persons were involved and were present at the place of occurrence
it was but natural that they would have been around in order to
execute their devious plan. This scenario was never depicted by the
circumstances and when we have a glance to the ballistic report
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(Exhibit-9) prepared by P.W.26 it is evident that two AK-47 rifles
were used apart from a hand grenade being thrown. These facts
cement the assertion of P.W.2 that 2-3 persons were involved in
the firing. P.W.22 who is the informant in his evidence has
mentioned about the presence of 1-2 persons. In the fardbeyan of
P.W.22 he has mentioned about one assailant being armed with an
AK-47 rifle while another had thrown a hand grenade. The
promptness of lodging an FIR reflects the true version of the events
which had unfolded and the fardbeyan of P.W.22 making
accusations against two assailants only leads credence to such
assertion. In such context, we may refer to the case of “Jai Prakash
Singh versus State of Bihar and Another“, reported in (2012) 4 SCC
379, wherein it has been held as follows:
“12. The FIR in a criminal case is a vital and valuable
piece of evidence though may not be substantive piece
of evidence. The object of insisting upon prompt
lodging of the FIR in respect of the commission of an
offence is to obtain early information regarding the
circumstances in which the crime was committed, the
names of the actual culprits and the part played by
them as well as the names of the eye-witnesses
present at the scene of occurrence. If there is a delay
in lodging the FIR, it loses the advantage of
spontaneity, danger creeps in of the introduction of
coloured version, exaggerated account or concocted
story as a result of large number of consultations /
deliberations. Undoubtedly, the promptness in lodging
the FIR is an assurance regarding truth of the
informant’s version. A promptly lodged FIR reflects the
first hand account of what has actually happened,
and who was responsible for the offence in question.
(Vide Thulia Kali v. State of T.N. [(1972) 3 SCC 393 :
1972 SCC (Cri) 543 : AIR 1973 SC 501] , State of
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Punjab v. Surja Ram [1995 Supp (3) SCC 419 : 1995
SCC (Cri) 937 : AIR 1995 SC 2413] , Girish
Yadav v. State of M.P. [(1996) 8 SCC 186 : 1996 SCC
(Cri) 552] and Takdir Samsuddin Sheikh v. State of
Gujarat [(2011) 10 SCC 158 : (2012) 1 SCC (Cri) 218 :
AIR 2012 SC 37] .)”
68. Mr. Surendra Singh, learned Senior Counsel for the
appellants has submitted that the non-consideration of the
evidence of P.W.2 and P.W.22 by the learned trial court and since
these witnesses favored the accused with respect to the number of
assailants present at the place of occurrence such evidence should
have acted in favour of the appellants. This view has been rendered
in the case of “Virendra versus State of Madhya Pradesh” reported
in AIR 2022 SC 3373, wherein it has been held as follows:
“7. Both the courts shifted the burden on the defence.
The evidence rendered by the prosecution witnesses
was rejected, either as that of indifferent witnesses or
as irrelevant evidence. We may note that these are all
prosecution witnesses who were not treated as
hostile. No attempt whatsoever was made either to
treat them as hostile or to re-examine them except that
of PW10. Not even a suggestion was put to them on
the presence of PW15. In such a scenario, the
statement made by the prosecution witnesses in
favour of the accused would certainly inure to his
benefit. Our view is fortified by the decision of this
Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC
272 : (AIR Online 2000 SC 474):
“9. But the testimony of PW8 Dr. Sukhdev Singh,
who is another neighbour, cannot easily be
surmounted by the prosecution. He has testified
in very clear terms that he saw PW 5 making the
deceased believe that unless she puts the blame
on the appellant and his parents she would have
to face the consequences like prosecution
proceedings. It did not occur to the Public-75-
Prosecutor in the trial court to seek permission of
the court to heard (sic declare) PW8 as a hostile
witness for reasons only known to him. Now, as
it is, the evidence of PW 8 is binding on the
prosecution. Absolutely no reason, much less
any good reason, has been stated by the
Division Bench of the High Court as to how
PW8’s testimony can be sidelined.”
It is reiterated in Javed Masood v. State of
Rajasthan, (2010) 3 SCC 538 : (AIR 2010 SC
979):
“20. In the present case the prosecution never
declared PWs 6, 18, 29 and 30 “hostile”. Their
evidence did not support the prosecution.
Instead, it supported the defence. There is
nothing in law that precludes the defence to rely
on their evidence.”
Reliance was made on the recovery from the
appellant. The fact remains that there was sufficient
evidence to conclude that only one shot was fired
which could be seen even from the evidence of PW15.
While assessing the evidence produced by the
defence, courts discarded them without appreciating
the fact that it has to be seen only on the degree of
probability.”
69. In the backdrop of the aforesaid reasonings we
come to a conclusion that only 2-3 persons were involved in the
murderous assault on Sushil Srivastava as deposed by P.W.2 and
P.W.22 and P.W.7, P.W.11, P.W.16, P.W.17, P.W.18 and P.W.34
seems to have developed their version in that respect in order to
bring all the accused persons within the precincts of suspicion.
70. The evidence of the Police witnesses notably P.W.7,
P.W.11, P.W.13, P.W.14, P.W.15, P.W.16, P.W.17, P.W.18 and
P.W.34 and the sloppy manner in which the investigation has been
carried out is an enigma in itself. The incident had taken place on
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02.06.2015 and the promptness in lodging the First Information
Report on the same day itself dissipated with the passage of time
and the subsequent lackadaisical conduct of the Police raises more
questions then answers. These witnesses were available for
recording their statements but despite the same their statements
were recorded on 05.09.2015 and 06.09.2015 for an incident
which had occurred on 02.06.2015. These witnesses were on duty
to provide security of Sushil Srivastava. All these witnesses have
claimed to have identified Vikas Tiwary but the manner of
identification has completely exposed the languid and insouciant
investigation of the Police totally oblivious to the sobriety of the
offence. On a dissection of the evidence of P.W.11, P.W.13, P.W.14,
P.W.15, P.W.16, P.W.17, P.W.18 and P.W.34 the common thread
which runs through is of their awareness about the involvement of
the appellant Vikas Tiwary as the principal offender and the main
adversary of Sushil Srivastava from the newspaper reports which
were published on the next day of the mayhem along with
photographs of Vikas Tiwary which was followed up on subsequent
dates also. These witnesses have been candid enough to state so
and some of them have unflinchingly stated about the pressure
created upon them by the Superintendent of Police, Hazaribagh by
suspending them, seizing their arms and issuing threat of not
revoking the suspension till the accused persons are identified. In
the backdrop of such manner of identification, we may emphasis
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on a few judgments which would give muscle to such finding of
ours.
71. In the case of “Seeni Nainar Mohammed v. State
Represented by Deputy Superintendent of police” reported in (2017)
13 SCC 685, it has been held as follows:
“25. We accept the contention of the learned Senior
Counsel for the appellants that the test identification
parade was a farce as after the pictures of the
accused had been published in the newspaper, the
identification parade which is a very weak piece of
evidence should not have been conducted.”
72. In the case of “Ravi Alias Ravichandran v. State
State Represented by Inspector of police” reported in (2007) 15 SCC
372, it has been held as under:
“16. Mr R. Sundaravaradan, learned Senior Counsel
appearing on behalf of the State, however, would
submit that identification of the prisoners in court only
is the substantive evidence and the High Court was
correct in its approach in rendering its opinion on the
said basis. It was furthermore submitted that DW 1
was merely a hearsay witness.
17. Certain facts are not in dispute. The test
identification parade was held after ten days. It is
also not in dispute that the photographs of the
accused were taken at the police station. The
investigation officer allowed them to be published.
Photographs of the appellant and the said
Udayakumar were not only published, according to
the prosecution witnesses, they were shown to be the
accused in the aforementioned crime. Some of them
admittedly were aware of the said publication. The
purported test identification parade which was held
ten days thereafter, in our opinion, looses all
significance, in the aforementioned fact situation.
18. It is no doubt true that the substantive evidence of
identification of an accused is the one made in the
court. A judgment of conviction can be arrived at even
if no test identification parade has been held. But
when a first information report has been lodged
against unknown persons, a test identification parade
in terms of Section 9 of the Evidence Act, is held for-78-
the purpose of testing the veracity of the witness in
regard to his capability of identifying persons who
were unknown to him. The witnesses were not very
sure as to whether they had seen the appellant
before. Had the accused been known, their identity
would have been disclosed in the first information
report. PW 1 for the first time before the court stated
that he had known the accused from long before, but
did not know their names earlier, although he came to
know of their names at a later point of time.
19. In a case of this nature, it was incumbent upon
the prosecution to arrange a test identification parade.
Such test identification parade was required to be
held as early as possible so as to exclude the
possibility of the accused being identified either at the
police station or at some other place by the witnesses
concerned or with reference to the photographs
published in the newspaper. A conviction should not
be based on a vague identification.”
73. Though it is true that no newspaper containing
such article of the incident or the photographs of Vikas Tiwary
published in the same have been exhibited but that by itself would
not diminish or evanesce the evidence of the witnesses referred to
above viewed in the consistent and corroborative nature of such
evidence with respect to the identification of the appellant through
the photographs which were published in the newspapers. The
circumstances narrated above would, therefore, invalidate the
identification of the appellant Vikas Tiwary so far as P.W.7, P.W.11,
P.W.13, P.W.14, P.W.15, P.W.16, P.W.17, P.W.18 and P.W.34 are
concerned.
74. P.W.24 and P.W.25 have been projected by the
prosecution as witnesses of sterling quality. P.W.24 Avik Srivastava
is the son of the deceased Sushil Srivastava who has stated that on
the fateful day he had come to meet his father along with his
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brother Aman Srivastava. He has stated about the presence of all
the appellants and a few others standing near a Bolero vehicle. The
presence of the appellants neither created any suspicion in the
mind of P.W.24 nor did P.W.24 took evasive action to shield his
father which seems to be an unnatural conduct on the part of
P.W.24 considering his cross-examination in which he has
admitted about the existence of an enmity between his father and
the appellant Vikas Tiwary. The evidence of P.W.24 is perforated
with contradictions and incongruities as though in his
examination-in-chief he has claimed to have identified Vikas
Tiwary standing besides a Bolero vehicle with the other appellants
but in his cross-examination, he has accepted the fact that he had
not seen Vikas Tiwary prior to the incident and his father had also
not disclosed to him about the age and physical features of Vikas
Tiwary. The unnatural conduct of P.W.24 which we have dealt with
earlier is further fortified by the fact that despite the incident
having taken place on 02.06.2015 no case was lodged by him
immediately or by any of the accomplices of his father. He had
instituted a case on 03.09.2015 at Hazaribagh and during the
intervening period no case was instituted either at Hazaribagh or
at Ranchi. The written report submitted by P.W.24 on 02.09.2015
also appears to have been suppressed by the prosecution. His
statement was recorded by the Police on 03.09.2015. The
institution of the case by P.W.24 after such an inordinate and
unexplainable delay and giving a detailed description of the events
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is clearly an afterthought and gravitates the evidence of P.W.24
towards the domain of exaggeration and falsity. The evidence of
P.W.24 has also been sought to be challenged on the ground that
P.W.24 is the son of the deceased and an interested witness.
Countering such submission Mr. B.M. Tripathi, learned Senior
Counsel for the informant has relied upon the case of “Shio
Shankar Dubey and Ors. v. State of Bihar” reported in (2019) 6 SCC
501, in which, it has been held as follows:
“10. PW 11, who is a brother of the deceased, has
fully corroborated the prosecution case in his
evidence. In spite of thorough cross-examination, the
witnesses could not be shaken. The submission of the
appellant that witnesses PW 11 and PW 13 being
related to the deceased are interested witnesses and
should not be relied upon does not commend us. The
mere fact that the deceased was brother of the
informant and PW 13 is the husband of the niece of
the deceased does not impeach their evidence in any
manner. The mere fact that witness is related does not
lead to inference that such witness is an interested
witness. This Court has occasion to consider such
submission in a number of cases. In Kartik Malhar v.
State of Bihar [Kartik Malhar v. State of Bihar, (1996)
1 SCC 614 : 1996 SCC (Cri) 188] , this Court held that
a close relative who is a very natural witness cannot
be regarded as an interested witness. In paras 15
and 16, the following was laid down: (SCC pp. 621-
22)
“15. As to the contention raised on behalf of the
appellant that the witness was the widow of the
deceased and was, therefore, highly interested
and her statement be discarded, we may
observe that a close relative who is a natural
witness cannot be regarded as an interested
witness. The term “interested” postulates that
the witness must have some direct interest in
having the accused somehow or the other
convicted for some animus or for some other
reason. In Dalbir Kaur v. State of Punjab [Dalbir
Kaur v. State of Punjab, (1976) 4 SCC 158 :
1976 SCC (Cri) 527] , it has been observed as
under: (SCC pp. 167-68, para 11)
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’11. … Moreover, a close relative who is a very
natural witness cannot be regarded as an
interested witness. The term “interested”
postulates that the person concerned must have
some direct interest in seeing that the accused
person is somehow or the other convicted either
because he had some animus with the accused
or for some other reason. Such is not the case
here.’
16. In Dalip Singh v. State of Punjab [Dalip Singh
v. State of Punjab, (1953) 2 SCC 36 : AIR 1953
SC 364 : 1953 Cri LJ 1465] it has been laid
down as under: (AIR p. 366, para 26)
’26. A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily a close relative
would be the last to screen the real culprit and
falsely implicate an innocent person. It is true,
when feelings run high and there is personal
cause for enmity, that there is a tendency to
drag in an innocent person against whom a
witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and
the mere fact of relationship far from being a
foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
generalisation. Each case must be judged on its
own facts. Our observations are only made to
combat what is so often put forward in cases
before us as a general rule of prudence. There is
no such general rule. Each case must be limited
to and be governed by its own facts.'”
75. It is no doubt true that the evidence of a close
relative cannot simply be discarded as being an interested witness.
We cannot view such evidence with an opaque form of mind mainly
because P.W.24 is the son of the deceased. The evidence of such
witness has to be looked into with a great deal of circumspection to
discard any traces of “interestedness” radiating from the same.
However, as we have noticed above the evidence of P.W.24 does not
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have the effervescence of a natural and untainted description ofthe incident and signals out a grudge emanating from the inimical
terms his father shared with Vikas Tiwary.
76. P.W.25 has stated about his presence in the Court
premises on the day the incident had taken place and he had
witnessed Vikas Tiwary and his accomplices firing with AK-47 rifles
and exploding bombs. He has identified all the appellants as he
had seen them roaming around on several occasions in Patratu.
However, in his cross-examination he has deposed that the
incident had already taken place by the time he had reached the
place of occurrence. Even the Police had reached the place of
occurrence prior to him. These facts clearly shows the fabricated
nature of the evidence of P.W.25. Persisting with his evidence it
also seems that the firing made by Vikas Tiwary and his
accomplices have been conveniently left out by P.W.25 at the time
of recording of his statement u/s 161 Cr.P.C. In fact, none of the
features constituting his evidence finds place in his statement
before Police. Mr. Surendra Singh, learned Senior Counsel has
referred to a plethora of judgments on the issue of improvement in
evidence during trial. In the case of “Darshan Singh v. State of
Punjab” reported in (2024) 3 SCC 164, it has been held as follows:
31. If the PWs had failed to mention in their
statements under Section 161CrPC about the
involvement of an accused, their subsequent
statement before court during trial regarding
involvement of that particular accused cannot
be relied upon. Prosecution cannot seek to
prove a fact during trial through a witness
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which such witness had not stated to police
during investigation. The evidence of that
witness regarding the said improved fact is of
no significance.
77. In the case of “Ankush Maruti Shinde And Ors. v.
State of Maharashtra” reported in (2019) 15 SCC 470, it has been
held as follows:
“9.9. Apart from the above, on considering the entire
deposition of PW 8, we are of the opinion that PW 8
who claims to be an eyewitness, she is not a reliable
and trustworthy witness. Her entire testimony in court
is full of material omissions /contradictions/
improvements. Prior to her deposition in court, her two
statements dated 6-6-2003 and 7-6-2003 were
recorded by the police and the Magistrate respectively.
The entire description of incident given by PW 8 in the
court has not been stated by her in her earlier
statements. This evidence has come for the first time
during the deposition in court by way of an
improvement. In her earlier statements, PW 8 has
never given any details of the assault or the roles
played by different persons during the incident. Even
in the TI parade, she did not attribute any role to the
persons she identified. The first time PW 8 gave any
details about the incident or ascribed the roles to the
accused persons was two-and-half years later in the
court and never before that. Her failure to give any
statement to the police and the two Magistrates either
about the events occurring during the incident or the
roles played by different persons render her evidence
unreliable. When in her cross-examination, she was
confronted with such omissions/improvements, she
has taken only one thing that she told this to the
police but she does not know why the police did not
record the same. However, the same is not
corroborated by any other evidence, more particularly
the deposition of the IO and/or the Magistrates.
Therefore, it is unsafe to rely upon the deposition of
PW 8 and to convict the accused. It is also required to
be noted that even according to PW 8, she was
subjected to rape, however, the prosecution has
miserably failed to prove the rape on her by leading
cogent evidence, more particularly the forensic
evidence. Therefore, to that extent also she is not
reliable.”
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78. Similarly in the case of “Ajmer Singh and Ors. v.
State of Punjab” reported in (1977) 1 SCC 659, it has been held as
under:
“9. Another mistake which has occurred in the
judgments of both the courts below is that they have
not examined the statement of Mehar Singh PW 4 in
the trial court with reference to his statement under
Section 161 CrPC in one important respect. In his
police statement Mehar Singh did not ascribe the
infliction of any injury to appellants Mehar Singh and
Bachan Singh. In fact in his statement to the police he
did not ascribe the infliction of any injury to any
accused except Ajmer Singh, Ujagar Singh, Chanan
Singh and Ralla Singh. When he was confronted with
that serious discrepancy, all that Mehar Singh could
state was that it was incorrect that he had not
ascribed the infliction of any injury to any accused
except the four accused mentioned above. It is
therefore apparent that he did not find it possible to
give a satisfactory explanation of the discrepancy.
This infirmity in Mehar Singh’s statement was not
noticed by the trial court or the High Court. As it is of
great importance, and as the High Court has itself
taken the view that it would be safe to rely on Mehar
Singh’s evidence, we do not find it possible to take the
view, on the basis of Mehar Singh’s own statement,
that it would be safe to uphold the conviction of
appellants Mehar Singh, Bachan Singh, Jarnail Singh,
Sardara Singh and Surjit Singh. Benefit of doubt has
already been given to accused Jogender Singh, Amar
Singh and Ralla Singh, and we are inclined to think
that Mehar Singh, Bachan Singh, Jarnail Singh,
Sardara Singh and Surjit Singh are also entitled to the
benefit of doubt.”
79. The aforesaid pronouncements highlight that
improvements and exaggerations from the earlier statement of a
witness which makes such evidence unreliable and untrustworthy.
The evidence of P.W.25 falls within the four corners of these
judgments on account of the inherent nature of improvement made
which has been admitted by P.W.25 in his cross-examination.
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80. P.W.4 (Dharmendra Kumar Singh) who is also a
Police personal has claimed to have identified Vikas Tiwary
through Video Conferencing but this witness has also stated about
seeing Vikas Tiwary when he was apprehended and he had also
seen him through photographs published in the newspapers. He
had seen the appellant Vikas Tiwary fleeing away and he had
identified him from the back. Since we have already discarded the
evidence of P.W.7, P.W.11, P.W.13, P.W.14, P.W.15, P.W.16,
P.W.17, P.W.18 and P.W.34 on the issue of identification of the
appellant Vikas Tiwary and the evidence of P.W. 4 being similar
and relatable to these witnesses such testimony cannot be an
apparatus to convict the appellant Vikas Tiwary. Moreover, as we
have come to a conclusive finding that only 2-3 persons were
involved in the murderous assault upon Sushil Srivastava, the
accusations against the accused persons as made by P.W.24 and
P.W.25 further undermines the case of the prosecution.
81. It appears from the evidence of the Investigating
Officer who has been examined as P.W.40 that Aman Srivastava
another son of Sushil Srivastava had recorded a fardbeyan at
Medica Hospital but the same does not mention any of the
appellants being present at the place of occurrence and it also does
not mention the presence of Avik Srivastava (P.W.24) which further
nullifies the evidence of P.W.24.
82. The appellant Vikas Tiwary is said to have
confessed and the said confessional statement has been exhibited
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but there has been no incriminating material which have surfaced
on such confession and the same being hit by Section 25 Evidence
Act such confessional statement becomes inadmissible in evidence.
Reference in support of the same is placed upon the case of “Rahul
v. State (NCT of Delhi) Ministry of Home Affairs and Anr.” reported in
(2023) 1 SCC 83, wherein it has been held as follows:
“30. At this juncture, it may be noted that the trial
court had allowed the entire disclosure statements of
the three accused to be admitted in evidence by
exhibiting the same as Exts. PW 39/B, PW 41/B and
PW 41/C. The said statements were recorded by PW
48, Sandeep Gupta, when they were in police custody.
The said statements being in nature of the confessions
before the police were hit by Section 25 of the
Evidence Act. The law in this regard is very clear that
the confession before the police officer by the accused
when he is in police custody, cannot be called an
extra-judicial confession. If a confession is made by
the accused before the police, and a portion of such
confession leads to the recovery of any incriminating
material, such portion alone would be admissible
under Section 27 of the Evidence Act, and not the
entire confessional statements. In the instant case,
therefore the trial court had committed gross error in
exhibiting the entire disclosure statements of the
accused recorded by PW 48 P-1 Sandeep Kumar
Gupta, for being read in evidence. Though, the
information furnished to the investigating officer
leading to the discovery of the place of the offence
would be admissible to the extent indicated in Section
27 read with Section 8 of the Evidence Act, but not the
entire disclosure statement in the nature of confession
recorded by the police officer.”
83. The detailed circumstances mentioned by us in the
above-mentioned paragraphs clearly points to the absence of any
culpability on the part of the appellant Vikas Tiwary of being
involved in the gruesome and distressing murder of Sushil
Srivastava.
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84. So far as the appellant no. 2 Santosh Pandey in
Criminal Appeal (DB) No. 597 of 2020 is concerned, P.W.2, P.W.4
and P.W.5 have failed to identify him. P.W.14 has identified this
appellant but, in his cross-examination, he has deposed of not
disclosing before the Superintendent of Police of his recognizing the
appellant. P.W.16 and P.W.17 have identified the appellant but
have not disclosed even an iota of participation of the appellant in
the shoot out which makes such evidence redundant; more so
when they were suspended along with several other Police
personnel deputed for security of Sushil Srivastava with a threat as
per P.W.34 to identify the accused persons in order to get the
suspensions revoked. P.W.18 has stated about coming to know of
the incident of firing and his identification of the appellant in the
touchstone of such evidence dispels the veracity and truthfulness
of his evidence. So far as P.W.24 and P.W.25 are concerned, we
have already discussed and discarded such evidence while dealing
with the appeal of Vikas Tiwary. The confessional statement of the
appellant was recorded by the Investigating Officer examined as
P.W.40. It is the case of the prosecution based on the evidence of
P.W.8 that after the arrest of the appellant three mobiles were
seized from his possession but it has not been ascertained as to in
how and what manner the seizure of mobiles criminates the
appellant. There appears to be no justifiable and cogent material
inviting an order of conviction.
-88-
85. The appellant Vishal Singh in Criminal Appeal (DB)
No. 579 of 2020 seems to have been suspected to be a part of the
gang which had conspired and executed with precision such
devious plan in eliminating Sushil Srivastava. A plea of alibi has
been taken by the appellant and Mr. Anoop Prakash Awasthi,
learned counsel has placed reliance on certain bills which
demonstrates that the appellant was present at Ranchi when the
incident had taken place but such plea appears to suffer from an
inherent weakness as mere bills which can be manufactured and
fabricated cannot and should not form the spine of such plea. The
plea of alibi as raised by the learned counsel for the appellant is,
therefore, negated. The appellant Vishal Singh seems not to have
been put on Test Identification Parade and his identification in the
Dock is after a delay of three years. The identification for the first
time in Court has its innate weakness and, in this context, we may
refer to the case of “Kanan and Ors. v. State of Kerala” reported in
(1979) 3 SCC 319, wherein it has been held as follows:
“1….. This is all the evidence on the basis of
which the appellants have been convicted. We
have gone through the evidence of all these
witnesses and we are unable to agree with the
High Court that there was any legal evidence to
support the conviction of all the appellants. So
far as PW 25 is concerned, his evidence is full of
serious infirmities. To begin with, he had come to
the village in question in order to consult a
dentist which was the only occasion for his
presence in the village. As there was no
accommodation in the travelling bungalow, he
persuaded the Chowkidar to let him stay in his
room. The evidence of PW 25 is that he consulted
Dr Sabestian and got his tooth extracted. Neither
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Dr Sabestian was examined by the prosecution
nor was any register produced to show that the
witness had actually got himself examined by
the Doctor. This serious omission raises a
serious doubt about the very presence of PW 25
on the night of the occurrence. Secondly, PW 25
says that he heard an explosion, and if this was
so, as he was ill, his first impulse and natural
conduct would be to remain confined in the room
rather than to go out to look as to what was
happening around and invite danger. At any
rate, the witness only identified the appellant
Kanan and M.P. Veluyudhan as persons who
were running away near the place of occurrence.
The witness, however, did not say that he saw
these witnesses either entering the police station
and attacking it or coming out from the police
station with explosives or arms. There was a
huge crowd after the police station was attacked
and if these two appellants were seen running
away that by itself would not show that they
had taken part in the raid. Finally the witness
has clearly admitted that he knew these two
appellants by face and yet named them while
identifying them in court. It is not
understandable as to how the witness gave the
names of the appellants when he knew them
only by face which indicates that names of the
accused must have been supplied by someone
else and this introduces an element of doubt in
his testimony. Both the trial court and the High
Court have found that the mere fact that no T.I.
parade was held would not destroy the evidence
of PW 25. With due respect, we feel that the High
Court erred in law in taking this view. It is well
settled that where a witness identifies an
accused who is not known to him in the Court for
the first time, his evidence is absolutely
valueless unless there has been a previous T.I.
parade to test his powers of observation. The
idea of holding T.I. parade under Section 9 of the
Evidence Act is to test the veracity of the witness
on the question of his capability to identify an
unknown person whom the witness may have
seen only once. If no T.I. parade is held then it
will be wholly unsafe to rely on his bare
testimony regarding the identification of an
accused for the first time in Court. In these
circumstances, therefore, we feel that it was
incumbent on the prosecution in this case to-90-
have arranged T.I. parade and got the
identification made before the witness was
called upon to identify the appellant in the Court.
On this ground alone, the testimony of PW 25
becomes unworthy of credence and must be
excluded from consideration. In this view of the
matter, even if the evidence of PWs 17 and 18
regarding the participation of the accused in
conspiracy to raid the police station be accepted,
the evidence being of very vague nature, the
appellant cannot be convicted because there is
no evidence to show that the appellants were
members of that conspiracy. Apart from this,
PWs 17 and 18 named Piyachi as being the
person in the meeting where it was decided to
raid the police station. From the evidence of
these witnesses, it appears that they were also
co-conspirators. In the circumstances, the
evidence of these witnesses was that of an
accomplice and could not be accepted without
further corroboration….”
86. In the case of “Jaspal Singh @ Pali v. State of
Punjab” reported in (1997) 1 SCC 510, it has been held as under:
“13. It is common premise that although the
appellants were arrested on 27-7-1991, yet the
investigating agency did not hold TI parade. The
identification of the appellants in the Court made
by Gurjant Singh (PW 3) and Ram Singh (PW 4)
cannot be accepted with certainty as reliable
identification. If this be so, the attempt of the
prosecution to establish the identity of the
accused in the present crime has to be rejected
and, therefore, it is not possible to connect any of
the appellants with the present crime.”
87. Mr. B.M. Tripathi, learned Senior Counsel for the
informant has placed reliance in the case of “Sidhartha Vashisht
@ Manu Sharma v. State (NCT of Delhi)” reported in (2010) 6 SCC 1,
wherein it has been held as follows:
“255. Mr. Jethmalani has further argued on the
proposition that mere dock identification is no
identification in the eye of the law unless corroborated
by previous TIP before the Magistrate. It has been
further argued that in any case, even identification in
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court is not enough and that there should be
something more to hold the accused liable. In support
of his arguments, he placed heavy reliance on the
decision of this Court in Hari Nath v. State of U.P.
[(1988) 1 SCC 14 : 1988 SCC (Cri) 14] and Budhsen v.
State of U.P. [(1970) 2 SCC 128 : 1970 SCC (Cri) 343]
A close scrutiny of these judgments will reveal that
they in fact support the case of the prosecution. These
judgments make it abundantly clear that even where
there is no previous TIP, the court may appreciate the
dock identification as being above board and more
than conclusive.
258. The learned Solicitor General submitted that,
even otherwise, an adverse inference ought to be
drawn against the appellants for their refusal to join
the TIP. This view has found favour time and again by
this Court. It is pertinent to note that it is dock
identification which is a substantive piece of evidence.
Therefore even where no TIP is conducted no prejudice
can be caused to the case of the prosecution.”
88. As held in “Sidhartha Vashisht @ Manu Sharma”
(supra) Dock identification without holding of a Test Identification
Parade will be considered to be a conclusive piece of evidence.
However, such identification has to be considered in the facts and
circumstances of the case and evidently when the entire
mechanism of identification is designed to ensure the participation
of the appellant which is palpable from the evidence of the
witnesses such evidence creates a grave doubt over the case of the
prosecution. Even though several of the witnesses claimed
themselves to be the eye-witnesses but the degree of inconsistency
in every sphere of their evidence brings even the identification of
the appellants through Video Conferencing within the realm of
doubt.
89. The case of the appellant no. 1 Dilip Sao in
Criminal Appeal (DB) No. 599 of 2020 predominantly falls within
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the category of the case of the appellant Vishal Singh. As per P.W.9
and P.W.10 a mobile and a motorcycle were recovered from the
possession of the appellant but neither they were produced before
the Court nor an ascertainment has been made by the prosecution
regarding the nexus of such recovery with the alleged incident. The
other features of the case of this appellant are almost similar to the
case of Vishal Singh and none of the circumstances can designate
the appellant as having participated in the shootout.
90. So far as the appellant no. 2 Rahul Deo Pandey in
Criminal Appeal (DB) No. 599 of 2020 is concerned, he was lodged
in Jai Prakash Narayan Central Jail, Hazaribagh in connection
with a case when the incident had occurred. Despite the same in
order to denude the appellant of his innocence the prosecution
through its witnesses have tried to instill an accusation against
him of participating in the incident. P.W.14, P.W.16, P.W.17 and
P.W.18 have identified the appellant though Video Conferencing
but no specific role of the appellant has been assigned by them.
P.W.2 goes to the extent of having seen him from the back but at
the same time he has admitted to some doubt regarding such
identification. P.W.4 and P.W.5 have failed to identify the appellant
and P.W.18 has though identified him but he has stated about
coming to know about the incident which further denigrates his
evidence so far as identification of the appellant is concerned. The
other aspect of the case is of a spy who had disclosed that the
present appellant had confided over mobile to Vikas Tiwary
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regarding Sushil Srivastava being taken for production in Court
and after the murder was committed it was Vikas Tiwary who had
in turn informed the appellant about the murder. Neither any
witnesses have stated about the appellant Rahul Deo Pandey and
Vikas Tiwary having phones in their possession nor any mobiles
were seized or the CDR has been proved by the prosecution. The
effect of withholding of such vital piece of evidence has been
considered in the case of “Tomaso Bruno & Another Versus State of
Uttar Pradesh”, reported in (2015) 7 SCC 178 and the relevant
reads thus:
“26. The trial court in its judgment held that non-
collection of CCTV footage, incomplete site plan, non-
inclusion of all records and sim details of mobile
phones seized from the accused are instances of
faulty investigation and the same would not affect the
prosecution case. Non-production of CCTV footage,
non-collection of call records (details) and sim details
of mobile phones seized from the accused cannot be
said to be mere instances of faulty investigation but
amount to withholding of best evidence. It is not the
case of the prosecution that CCTV footage could not be
lifted or a CD copy could not be made.
27. As per Section 114 Illustration (g) of the Evidence
Act, if a party in possession of best evidence which
will throw light in controversy withholds it, the court
can draw an adverse inference against him
notwithstanding that the onus of proving does not lie
on him. The presumption under Section 114
Illustration (g) of the Evidence Act is only a permissible
inference and not a necessary inference. Unlike
presumption under Section 139 of the Negotiable
Instruments Act, where the court has no option but to
draw a statutory presumption, under Section 114 of
the Evidence Act, the court has the option; the court
may or may not raise presumption on the proof of
certain facts. Drawing of presumption under Section
114 Illustration (g) of the Evidence Act depends upon
the nature of fact required to be proved and its
importance in the controversy, the usual mode of
proving it; the nature, quality and cogency of the
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evidence which has not been produced and its
accessibility to the party concerned, all of which have
to be taken into account. It is only when all these
matters are duly considered that an adverse inference
can be drawn against the party.
28. The High Court held that even though the
appellants alleged that the footage of CCTV is being
concealed by the prosecution for the reasons best
known to the prosecution, the accused did not invoke
Section 233 CrPC and they did not make any
application for production of CCTV camera footage.
The High Court further observed that the accused
were not able to discredit the testimony of PW 1, PW
12 and PW 13 qua there being no relevant material in
the CCTV camera footage. Notwithstanding the fact
that the burden lies upon the accused to establish the
defence plea of alibi in the facts and circumstances of
the case, in our view, the prosecution in possession of
the best evidence, CCTV footage ought to have
produced the same. In our considered view, it is a fit
case to draw an adverse inference against the
prosecution under Section 114 Illustration (g) of the
Evidence Act that the prosecution withheld the same
as it would be unfavourable to them had it been
produced.”
91. This brings us to the angle of conspiracy as all the
appellants have been convicted u/s 302 of the IPC with the aid of
Section 120B of the IPC as the prosecution has sought to bring all
the appellants within the field of collusion, connivance and deceit
as it is the case of the prosecution that a plan was hatched and
executed in eliminating Sushil Srivastava. In “Mukesh v. State (NCT
of Delhi)” reported in (2017) 6 SCC 1, it has been held as follows:
“286. As already stated, in a criminal conspiracy,
meeting of minds of two or more persons for doing an
illegal act is the sine qua non but proving this by direct
proof is not possible. Hence, conspiracy and its objective
can be inferred from the surrounding circumstances and
the conduct of the accused. Moreover, it is also relevant
to note that conspiracy being a continuing offence
continues to subsist till it is executed or rescinded or
frustrated by the choice of necessity. In K.R.
Purushothaman v. State of Kerala [K.R. Purushothaman
v. State of Kerala, (2005) 12 SCC 631 : (2006) 1 SCC
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(Cri) 686] , the Court has made the following
observations with regard to the formation and rescission
of an agreement constituting criminal conspiracy : (SCC
pp. 637-38, para 13)
“13. To constitute a conspiracy, meeting of minds
of two or more persons for doing an illegal act or
an act by illegal means is the first and primary
condition and it is not necessary that all the
conspirators must know each and every detail of
the conspiracy. Neither is it necessary that every
one of the conspirators takes active part in the
commission of each and every conspiratorial acts.
The agreement amongst the conspirators can be
inferred by necessary implication. In most of the
cases, the conspiracies are proved by the
circumstantial evidence, as the conspiracy is
seldom an open affair. The existence of conspiracy
and its objects are usually deduced from the
circumstances of the case and the conduct of the
accused involved in the conspiracy. While
appreciating the evidence of the conspiracy, it is
incumbent on the court to keep in mind the well-
known rule governing circumstantial evidence viz.
each and every incriminating circumstance must
be clearly established by reliable evidence and the
circumstances proved must form a chain of events
from which the only irresistible conclusion about
the guilt of the accused can be safely drawn, and
no other hypothesis against the guilt is possible.
Criminal conspiracy is an independent offence in
the Penal Code. The unlawful agreement is sine
qua non for constituting offence under the Penal
Code and not an accomplishment. Conspiracy
consists of the scheme or adjustment between two
or more persons which may be express or implied
or partly express and partly implied. Mere
knowledge, even discussion, of the plan would not
per se constitute conspiracy. The offence of
conspiracy shall continue till the termination of
agreement.”
287. After referring to a catena of judicial
pronouncements and authorities, a three-Judge Bench of
this Court in State v. Nalini [State v. Nalini, (1999) 5 SCC
253 : 1999 SCC (Cri) 691] summarised the principles
relating to criminal conspiracy as under : (SCC pp. 515-
18, para 583)
“583. Some of the broad principles governing the law of
conspiracy may be summarised though, as the name
implies, a summary cannot be exhaustive of the
principles.
1. Under Section 120-A IPC offence of criminal
conspiracy is committed when two or more
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persons agree to do or cause to be done an illegal
act or legal act by illegal means. When it is a legal
act by illegal means overt act is necessary.
Offence of criminal conspiracy is an exception to
the general law where intent alone does not
constitute crime. It is intention to commit crime and
joining hands with persons having the same
intention. Not only the intention but there has to be
agreement to carry out the object of the intention,
which is an offence. The question for consideration
in a case is did all the accused had the intention
and did they agree that the crime be committed. It
would not be enough for the offence of conspiracy
when some of the accused merely entertained a
wish, howsoever horrendous it may be, that
offence be committed.
2. Acts subsequent to the achieving of the object of
conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the
object of conspiracy has been achieved, any
subsequent act, which may be unlawful, would
not make the accused a part of the conspiracy like
giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It
is rarely possible to establish a conspiracy by
direct evidence. Usually, both the existence of the
conspiracy and its objects have to be inferred from
the circumstances and the conduct of the accused.
4. Conspirators may for example, be enrolled in a
chain — A enrolling B, B enrolling C, and so on;
and all will be members of a single conspiracy if
they so intend and agree, even though each
member knows only the person who enrolled him
and the person whom he enrols. There may be a
kind of umbrella-spoke enrolment, where a single
person at the centre does the enrolling and all the
other members are unknown to each other, though
they know that there are to be other members.
These are theories and in practice it may be
difficult to tell which conspiracy in a particular
case falls into which category. It may, however,
even overlap. But then there has to be present
mutual interest. Persons may be members of single
conspiracy even though each is ignorant of the
identity of many others who may have diverse role
to play. It is not a part of the crime of conspiracy
that all the conspirators need to agree to play the
same or an active role.
5. When two or more persons agree to commit a
crime of conspiracy, then regardless of making or
considering any plans for its commission, and
despite the fact that no step is taken by any such
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person to carry out their common purpose, a crime
is committed by each and every one who joins in
the agreement. There has thus to be two
conspirators and there may be more than that. To
prove the charge of conspiracy it is not necessary
that intended crime was committed or not. If
committed it may further help prosecution to prove
the charge of conspiracy.
6. It is not necessary that all conspirators should
agree to the common purpose at the same time.
They may join with other conspirators at any time
before the consummation of the intended objective,
and all are equally responsible. What part each
conspirator is to play may not be known to
everyone or the fact as to when a conspirator
joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the
accused because it forces them into a joint trial
and the court may consider the entire mass of
evidence against every accused. Prosecution has
to produce evidence not only to show that each of
the accused has knowledge of the object of
conspiracy but also of the agreement. In the
charge of conspiracy the court has to guard itself
against the danger of unfairness to the accused.
Introduction of evidence against some may result
in the conviction of all, which is to be avoided. By
means of evidence in conspiracy, which is
otherwise inadmissible in the trial of any other
substantive offence prosecution tries to implicate
the accused not only in the conspiracy itself but
also in the substantive crime of the alleged
conspirators. There is always difficulty in tracing
the precise contribution of each member of the
conspiracy but then there has to be cogent and
convincing evidence against each one of the
accused charged with the offence of conspiracy.
As observed [United States v. Falcone, 109 F 2d
579 (2d Cir 1940)] by Judge Learned Hand that
“this distinction is important today when many
prosecutors seek to sweep within the dragnet of
conspiracy all those who have been associated in
any degree whatever with the main offenders”.
8. As stated above it is the unlawful agreement
and not its accomplishment, which is the gist or
essence of the crime of conspiracy. Offence of
criminal conspiracy is complete even though there
is no agreement as to the means by which the
purpose is to be accomplished. It is the unlawful
agreement which is the gravamen of the crime of
conspiracy. The unlawful agreement which
amounts to a conspiracy need not be formal or
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express, but may be inherent in and inferred from
the circumstances, especially declarations, acts
and conduct of the conspirators. The agreement
need not be entered into by all the parties to it at
the same time, but may be reached by successive
actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a
partnership in crime, and that there is in each
conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or more
persons enter into a conspiracy, any act done by
any of them pursuant to the agreement is, in
contemplation of law, the act of each of them and
they are jointly responsible therefor. This means
that everything said, written or done by any of the
conspirators in execution or furtherance of the
common purpose is deemed to have been said,
done or written by each of them. And this joint
responsibility extends not only to what is done by
any of the conspirators pursuant to the original
agreement but also to collateral acts incident to
and growing out of the original purpose. A
conspirator is not responsible, however, for acts
done by a co-conspirator after termination of the
conspiracy. The joinder of a conspiracy by a new
member does not create a new conspiracy nor
does it change the status of the other conspirators,
and the mere fact that conspirators individually or
in groups perform different tasks to a common end
does not split up a conspiracy into several
different conspiracies.
10. A man may join a conspiracy by word or by
deed. However, criminal responsibility for a
conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who
commits an overt act with knowledge of the
conspiracy is guilty. And one who tacitly consents
to the object of a conspiracy and goes along with
other conspirators, actually standing by while the
others put the conspiracy into effect, is guilty
though he intends to take no active part in the
crime.”
288. The rationale of conspiracy is that the required
objective manifestation of disposition of criminality is
provided by the act of agreement. Conspiracy is a
clandestine activity. Persons generally do not form
illegal covenants openly. In the interest of security, a
person may carry out his part of a conspiracy without
even being informed of the identity of his co-
conspirators. An agreement of this kind can rarely be
shown by direct proof; it must be inferred from the
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circumstantial evidence of cooperation between the
accused. What people do is, of course, evidence of what
lies in their minds. To convict a person of conspiracy, the
prosecution must show that he agreed with others that
they would together accomplish the unlawful object of
the conspiracy. (See Firozuddin Basheeruddin v. State of
Kerala [Firozuddin Basheeruddin v. State of Kerala,
(2001) 7 SCC 596 : 2001 SCC (Cri) 1341] .)”
92. In the case of “R. Venkatkrishnan v. CBI” reported
in (2009) 11 SCC 737, it has been held as follows:
“72. Criminal conspiracy in terms of Section 120-B of
the Code is an independent offence. It is punishable
separately. Prosecution, therefore, must prove the same
by applying the legal principles which are applicable for
the purpose of proving a criminal misconduct on the part
of an accused. A criminal conspiracy must be put to
action and so long a crime is merely generated in the
mind of the criminal, it does not become punishable.
Thoughts, even criminal in character, often involuntary,
are not crimes but when they take concrete shape of an
agreement to do or cause to be done an illegal act or an
act which is not illegal but by illegal means then even if
nothing further is done, the agreement would give rise to
a criminal conspiracy.
73. The ingredients of the offence of criminal conspiracy
are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing
to be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is done
by illegal means.
Condition precedent, therefore, for holding the
accused persons guilty of a charge of criminal
conspiracy must, therefore, be considered on the anvil of
a fact which must be established by the prosecution viz.
meeting point of two or more persons for doing or
causing to be done an illegal act or an act by illegal
means.
74. The courts, however, while drawing an inference
from the materials brought on record to arrive at a
finding as to whether the charges of the criminal
conspiracy have been proved or not, must always bear
in mind that a conspiracy is hatched in secrecy and it is,
thus, difficult, if not impossible, to obtain direct evidence
to establish the same. The manner and circumstances in
which the offences have been committed and the level of
involvement of the accused persons therein are relevant
factors. For the said purpose, it is necessary to prove
that the propounders had expressly agreed to or caused
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to be done the illegal act but it may also be proved
otherwise by adduction of circumstantial evidence
and/or by necessary implication. (See Mohd. Usman
Mohammad Hussain Maniyar v. State of Maharashtra
[(1981) 2 SCC 443 : 1981 SCC (Cri) 477] .)
81. A conspiracy may further be a general one and a
separate one. A smaller conspiracy may be a part of a
larger conspiracy. It may develop in successive stages.
(Nirmal Singh Kahlon v. State of Punjab [(2009) 1 SCC
441 : (2009) 1 SCC (Cri) 523 : (2008) 14 Scale 639] )
New techniques may be invented and new means may
be devised for advancement of common plan. For the
said purpose, conduct of the parties would also be
relevant.”
93. The theory of conspiracy as propounded by the
prosecution seems to be devoid of its basic tenets. In fact, after the
incident had taken place, the investigation seems to have taken out
a leaf from the articles in the newspapers showing the culpability
of the appellant Vikas Tiwary in the murder of Sushil Srivastava
and accordingly proceeded on such lines. The entire case of the
prosecution though have tried to instill a conspiracy theory but
neither from the conduct of the accused persons nor from any
material collected during investigation meeting of minds of the
appellants to execute such dastardly act has surfaced. The solitary
feature of a conspiracy having been hatched seems to be the
telephonic conversation between the appellant Vikas Tiwary and
the appellant Rahul Deo Pandey after Sushil Srivastava had left
the Jail for the Court for production and after his murder was
committed but once again these are vague assertions as neither
any mobile was seized nor the CDR exhibited. The theory of
conspiracy is built up on the purported enmity existing between
Sushil Srivastava and Vikas Tiwary. None of the features assorted
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by the prosecution demonstrates that a conspiracy was indeed
hatched by the appellants and the murder of Sushil Srivastava was
the ultimate outcome of such conspiracy.
The prosecution has remained silent about the
involvement of another person namely, Raj Singh who was a
shooter and according to P.W.11 his name had appeared in the
newspapers also. P.W.40 who is one of Investigating Officers has
stated about coming to know regarding the involvement of Raj in
the shoot out which has surfaced in course of investigation.
Another of the Investigating Officer who has been examined as
P.W.41 had explored such angle to a certain extent by visiting
Sultanpur to seek the remand of Raj as he was in jail but since Raj
was shifted to another prison in Bareli such effort seems to have
petered out. This would further characterize the manner in which
the investigation was carried out as despite receiving information
about Raj being one of the shooters and despite having located him
the Police had acted in an utter nonchalant and indifferent manner
decimating the lead it had got and closing the chapter on one of
the prime suspects.
94. Thus, on the basis of the discussions and
reasonings enunciated above, we hereby set aside the judgment
and order of conviction and sentence dated 11.09.2020 (Sentence
passed on 22.09.2020) passed by Sri Amit Shekhar, learned
Additional Sessions Judge-VI, Hazaribagh in S.T. No. 141 of 2016.
95. All these appeals are allowed.
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96. Since the appellants are in custody they are
directed to be released immediately and forthwith if not wanted in
any other case.
97. Pending I.As., if any, stands closed.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
High Court of Jharkhand at Ranchi
Dated, the 18th day of February, 2026.
A. Sanga /-
Uploaded on 18.02.2026
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