IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.978 of 2010 AKHILESH TIWARI @ AKHILESHWAR TIWARI Versus STATE OF BIHAR & ORS ----------- 2. 23.8.2010. I.A.No.1647 of 2010 Interlocutory Application has been filed by the appellant for condoning the delay in filing of appeal against the judgement of acquittal passed by the trial court. While condoning the delay we also considered the merit of the appeal. Cr.Appeal has been filed against the judgement and order dated 10.2.2008 passed by the 3rd Additional District & Sessions Judge, Gopalganj in Sessions Trial No.226 of 2001 whereby respondents no.2 to 4 have been acquitted from the charges framed against them under Sections 302/149 of the IPC. The Sessions Trial No.226 of 2001 arises out of Complaint Case No.719 of 1993 instituted by appellant Akhilesh Tiwari @ Akhileshwar Tiwari. Complaint Case was filed by him while he was in custody in Gopalganj jail in conection with Sidhwalia P.S.Case No.174 of 1993 instituted in connection with the murder of one Jagdish Tiwari for offence under Sections 147 and 302 of the IPC. The appellant Akhilesh Tiwary alias Akhileshwar 2 Tiwari and some other persons were accused in that case. Complaint Case instituted by this appellant was also with regard to the murder of Jagdish Tiwary in which all those persons named as witness in Sidhwalia P.S.Case No.174 of 1993 were made accused. Cognizance was taken in the complaint case and committed to the court of Sessions for trial vide Sessions Trial No.226 of 2001. The prosecution in support of the charges framed against the accused examined five witnesses. P.W.1 Gayatri Devi, wife of appellant Akhilesh Tiwari @ Akhileshwar Tiwari. Akhileshwar Tiwary himself P.W.2. Fulkali Devi, wife of Vikrama Tiwari P.W.3. Gayatri Devi, wife of Ragho Tiwari(P.W.4) and Suresh Tiwary, the typist of Civil Court was examined as P.W.5 who proved filing of complaint by Akhilesh Tiwary and the same was marked as Ext-1. P.W.1, P.W.3 and P.W.4 all are wives of accused in Sidhwalia P.S.case No.174 of 1993. They all have deposed as an eye witness and made statements that at the time of the occurrence, when Jagdish Tiwary was killed, none of the male members in the family were present there. The trial court disbelieved the evidence of P.W.1, 3, and 4 and passed the judgement of acquittal. The reason for disbelieving the deposition of all four witnesses is that they 3 are all interestd witness and in course of their deposition they made attempt to create an evidence for their husbands who are accused in Sidhwalia P.S.Case No.174 of 1993. The defence has also produced documentary evidence such as Ext-A certified copy of FIR of Barauli(Sidhwalia)P.S.Case No.174 of 1993, Ext-B certified copy of the chargesheet filed against Akhileshwar Tiwari in Barauli(Sidhwalia)P.S.Case No.174 of 1993, Ext-E/A certified copy of chargesheet filed against Ragho Tiwary, Rajesh Tiwari and Vikrama Tiwari in Barauli in Sidhwalia P.S.Case No.174 of 1993, Ext-B/E certified copy of chargesheet of Siwan Town P.S.Case No.154 of 2005 against Akhilesh Tiwari for an offence under Section 376 of the IPC. Ext-C is the certified copy of deposition of I.O. of Barauli(Sidhwalia)P.S.Case No.174 of 1993 herein Sessions Trial No.29 of 1995. The evidence of the defence was indicative of the fact that in Sidhwalia P.S.Case No.174 of 1993, instituted for killing of Jagdish Tiwari, chargesheet have been submitted against all accused persons, who are the husbands of P.W.1, P.W.3 and P.W.4. P.W.2 himself is an accused in that case. The trial court has considered the evidence and recorded a finding that all prosecution witnesses have stated that on the 4 day of occurrence there was no door at the main entrance of the house of the complainant due to which the accused persons entered into the house and killed Jagdish Tiwari. This evidence has been contradicted by the I.O., who deposed that there existed a door. The trial court also considered the existing enmity in between the accused and complainant and pendency of several cases in between them. It has also been considered by the trial court that not a single villager came up to support the case of the prosecution. All the prosecution witnesses are no other person than the family members. The deceased Jagdish Tiwary was the family member of Akhilesh Tiwari @ Akhileshwar Tiwari and other accused of Sidhwalia P.S.Case No.174 of 1993. After his death the family members i.e. examined as witnesses had and only concerned to save male members from their conviction in S.T.No.29 of 1995. That was the reason that they all deposed as an eye witness. The trial court has also discussed the evidence of P.W.1 who said that after the killing of Jagdish Tiwari in the night no alarm was raised and not a single villagers arrived and no information was given to any one till arrival of police next day in the morning; this part of the 5 deposition was found quite improbable by the trial court. Considering these facts and also the contradiction in the evidence of the prosecution witness we also find that the complaint case was instituted by Akhilesh Tiwari @ Akhileshwar Tiwari much later of the institution of police case in which he was named as an accused. The trial court has recorded findings in which we do not find any infirmity, since the appeal has got no merit. There is no reason for condoning the delay. Accordingly, the Interlocutory Application has arise the appeal is dismissed. B.Kr. ( Mridula Mishra,J. ) ( Dharnidhar Jha, J. )