ദിലീപ് തിവാരിയുടെ വധശിക്ഷ ഇളവു ചെയ്ത സുപ്രിം കോടതി വിധി

“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1026 OF 2008

Dilip Premnarayan Tiwari & Anr. …. Appellants
Versus
State of Maharashtra …. Respondent
WITH
CRIMINAL APPEAL NO.1025 OF 2008

Sunil Ramashray Yadav …..Appellant
Versus
State of Maharashtra ….Respondent

J U D G M E N T
V.S. SIRPURKAR, J.

1. This judgment will dispose of two appeals, they being
Criminal Appeal No.1026 of 2008, filed on behalf of the appellant
accused Dilip Premnarayan Tiwari and Manoj Paswan, as also
Criminal Appeal No.1025 of 2008 filed by Sunil Ramashray Yadav.
Their appeals against their convictions by the Sessions Judge have
been dismissed by the Bombay High Court and the death sentence
awarded to all the three accused has also been confirmed.

2. As many as five accused persons were tried by the Trial
Court for offences under Section 302, 307, 452 read with Section
120B of the Indian Penal Code (‘IPC’ for short) and Section 34 and
Section 120B, IPC (substantive). Eventually, original accused No.
4, Premnarayan Brijkishore Tiwari and accused No.5 Tulsa Devi were
acquitted by the Trial Court whereas the other three accused
persons, namely, accused No.1, Dilip Premnarayan Tiwari, accused
No.2, Sunil Ramashray Yadav and accused No.3, Manoj Tulshi Paswan
were convicted under different Sections for various offences
including Section 302 read with Section 34, Section 307 read with
Section 34, IPC and Section 452 read with Section 34 of the IPC.
While they were awarded death sentence for the offence under
Section 302, they were awarded 10 years’ rigorous imprisonment
with fine of Rs. 5,000/- each, and in default, to suffer 5 month’s
imprisonment each for offence under Section 307 read with Section
34, IPC and three year’s rigorous imprisonment and to pay a fine
of Rs. 1,000/- each, in default, to suffer one month’s
imprisonment.

3. Since it was a death sentence matter, reference was made to
the High Court for the confirmation of the death sentence and the
accused also filed appeals against their conviction and the
punishment therefor before the High Court. The High Court has
confirmed the death sentence while the appeals of the accused
persons were dismissed. That is how these two appeals have come
before us.

4. As per the prosecution case, accused No.1, Dilip
Premnarayan Tiwari, is the son of original accused No. 4,
Premnarayan Brijkishore Tiwari, and original accused No. 5, Tulsa
Devi is the wife of accused No.4. Accused No.1, Dilip’s sister
Sushma fell in love with deceased Prabhu who used to live in the
neighbourhood of their residential house. Ultimately, she got
married to Prabhu. Prabhu being a Keralite and belonging to
‘Ezhava’ caste, the marriage was not approved of by the family of
Sushma since Sushma belonged to a Brahmin caste from the State of
Uttar Pradesh. The whole family of Sushma was extremely opposed
to the marriage which took place on 29.10.2003 before the
Registrar of Marriages, Bandra, Mumbai. According to the
prosecution, there were efforts to call back Sushma into her
familyfold. According to the prosecution, she was threatened and
so were her in-laws by original accused No.1, Dilip.

5. The love affair of Sushma with deceased Prabhu was going on
for about 5-6 years and deceased Abhayraj @ Bachhu and Bijit used
to act as messengers between the two. They were also threatened
during the love affair by Dilip as well as his mother, original
accused No.5, Tulsa Devi. According to the prosecution, accused
Dilip had assaulted Sushma with kicks and fist blows on account of
her love affair with Prabhu and had also threatened that in case
she married Prabhu, both will be eliminated. However, as has been
stated earlier, the marriage took place on 29.10.2003 and after
the marriage Sushma started residing with her husband, deceased
Prabhu. She was a college going girl at the time of her marriage
and she continued her education even after her marriage. Accused
No. 5, Tulsa Devi also advised her to leave Prabhu. She also
promised her that her second marriage would be arranged in Uttar
Pradesh. Her elder sister Kalpana, who is already married had
also tried to contact Sushma and had come to the house of Sushma
to meet her. She had also met Sushma on 08.05.2004 in her college
and tried to persuade her that her husband was not smart and was
not earning anything and, therefore, she should accompany her to
their hometown in Uttar Pradesh where they had selected one youth
serving in the Air Force and that Sushma should marry him. Sushma
straightaway refused all these proposals. In fact, on account of
these threats, Sushma had suggested that a police complaint should
be lodged against Tiwari family. However, she was assured by her
husband Prabhu that everything would be alright with the passage
of time. There were even proposals that on account of the
threats, Sushma and Prabhu should leave Bombay and stay in his
hometown in Kerala. However, instead of doing that, Sushma, who
was pregnant at that time, was sent to Prabhu’s relative’s house
in Andheri and that is how Sushma was shifted to the house of
Shashidharan, PW-2. Shashidharan’s wife was the sister of
Prabhu’s mother, Indira. One Balan, PW-1 also used to live in
Andheri. His wife was the third real sister of Prabhu’s mother,
Indira.

6. The ghastly incident took place on the night of 16/17th May,
2004. On that day, Prabhu’s father Krishnan Nochil himself, his
nephew Bijit, Prabhu’s sister, Deepa (PW-4) and Indira (PW-8) were
present in the Noichil household. At about 1.15 a.m. at night
someone knocked the back side door of their house. Deceased
Krishnan Nochil opened the door. According to the prosecution,
the three appellants, namely, Dilip (A-1), Manoj (A-3) and Sunil
(A-2) and one more unknown person entered the house. Dilip and
Manoj assaulted Krishnan Nochil with knife over the chest, stomach
and when Prabhu rushed to save his father, accused No. 1, Dilip
and accused No. 3, Manoj assaulted him also with knife and stabbed
him in stomach and chest. As per the prosecution case, Dilip
asked Sunil and one unknown person to take Prabhu out of the house
and kill him. When Deepa (PW-4) started proceeding ahead to save
her brother, Dilip and Manoj rushed towards her with knife and at
that time Bijit who had come there caught hold of accused Manoj
and urged him not to assault her. At that time accused Manoj
inflicted blows with knife over hand, chest and cheek of Bijit as
a result of which Bijit fell down. The accused Dilip and Manoj
came near Deepa and inflicted blows with knife on her face and
body and when Deepa fell down, Indira, Prabhu’s mother who was
awakened, tried to intervene. At that time, she was also
assaulted by Dilip (accused No.1) and Manoj (accused No.3). At
that time, Sunil who had gone out along with the unknown assailant
came back and inflicted knife blows over the neck of Abhayraj @
Bachhu who had in the meantime come there. Abhayraj was the
immediate neighbour and used to live in between the houses of
Tiwari household and Noichil household. Having been assaulted, he
ran outside when Sunil (original accused No.2) chased him and
assaulted him also. Accused Dilip and Manoj then left the house
and while leaving, Manoj had dropped the knife in that room.
Deepa who was severely injured gathered her courage and after 10-
15 minutes of the assault contacted PW-1, Balan on phone and
informed him about the incident of assault at the instance of
accused No.1 Dilip, accused No.3 Manoj and accused No, 2 Sunil and
one more person. Indira, mother of Prabhu who was also seriously
injured somehow opened the front door and shouted ‘bachao bachao’.

7. At this time Prabhu was lying in an injured condition in
front of the door and was shouting ‘mummy mummy’’. Balan (PW-1),
on receiving the phone call in the dead of night from Deepa,
rushed to the Noichil household in Khairpada Waliv at about 4’O
clock in the morning only to find that his son Bijit and brotherin-
law Krishnan Nochil were dead and lying in the pool of blood
while Deepa, Indira and Prabhu who were alive, were shifted to the
local dispensary by Head Constable Bhosale who was on bandobast
duty at check post, Sativali Khind, who had rushed to the spot on
being informed. Bhosale had also sent a message to Manikpur
Police Station to send one mobile van. Bhosale also brought one
tempo and arranged to send the three injured to Primary Health
Centre, Navghar.

8. By that time, Balan who was informed by Deepa had contacted
Shashidharan and come to Navghar along with Shashidharan.
Thereafter, all the injured were taken to one Bhagvati hospital as
they were very seriously injured and could not have been treated
in the Primary Health Centre at Navghar. Deepa and Indira were
not in a condition to speak, however, Prabhu disclosed to
Shashidharan who was accompanying them in the mobile van that
Sushma’s brother Dilip, Manoj and Sunil and one more person had
inflicted knife blows and had injured him and other persons of the
family.

9. The injured Prabhu reached Bhagvati hospital along with
Shashidharan in the mobile van and there he also succumbed to his
injuries. Deepa had lost her consciousness while Indira was also
very seriously injured and they were treated in the Hospital. But
before that, at about 5 a.m. Balan came to the police station and
lodged the First Information Report which was registered as
C.R.No. 1-144/04 registered at about 5.30 a.m. for the offence
under Section 302 and 307, 452 read with Section 34 of the IPC.
The police reached the spot and PSI Shri Bharve prepared the
inquest Panchnama of the dead bodies of Krishnan Nochil and Bijit.
He also prepared the inquest Panchnama of Abhayraj who was lying
outside the house near K.T.Maidan and, thereafter, all the three
dead bodies were sent for post-mortem examination. Investigation
officer also prepared the spot Panchnama and seized blood stained
handkerchief, blood stained iron knife which were lying there and
also collected the blood samples lying on the floor. Deepa’s
statement came to be recorded on 18.05.2004 after she regained
consciousness. Prabhu’s body was also sent for post-mortem.

10. During the investigation, the statements of witnesses like
Sushma and Indira came to be recorded. Dilip was arrested on
29.5.2004 from Uttar Pradesh. One knife, pant and shirt having
blood stains were recovered at the instance of Dilip. Since
Indira was very seriously injured, her statement could be recorded
on 02.06.2004 in the Hospital. Accused Sunil came to be arrested
on 02.06.2004. He has also disclosed on 05.06.2004 about the
knife and the blood stained clothes which were seized. Accused
No.2, Manoj came to be arrested only on 22.06.2004 while the
parents of Dilip (original accused No.1), Premnarayan Tiwari
(original accused No. 4) and Tulsa Devi (original accused No.5)
were also arrested on 25.6.2004. After the completion of the
investigation the charge sheet was filed against five named
accused and on that basis charges were framed against all the
accused persons. The Trial Court, however, acquitted original
accused Nos.4 and 5 since they had not taken part in the dastardly
attack and the charge of conspiracy under Section 120B, IPC also
was not proved against them, but awarded death sentence to the
remaining accused and that is how the matter has come before us.

11. Shri Gaurav Agrawal, Advocate appeared for accused No.1,
Dilip and accused No. 3, Manoj and Shri S.N. Raj, Advocate
appeared for accused No.2, Sunil while the State of Maharashtra
was represented by Shri Sushil Karanjkar, Advocate. Shri Gaurav
Agrawal attacked the findings of the Trial Court and the High
Court in respect of both the accused persons. The mainstay of his
argument was that the whole prosecution case stood on extremely
weak basis inasmuch as all the prosecution witnesses were
interested witnesses and as such it was very risky to rely on the
evidence of those witnesses. Learned counsel severely attacked
the so-called oral dying declaration by deceased Prabhu alleged to
have been made by him in the Ambulance Van to Shashidharan (PW-2).
Learned counsel argues that Prabhu who was severely injured and
who died barely within few hours of his reaching the Hospital
could not be said to be in the proper physical condition to make a
dying declaration. The counsel, therefore, urged that the
acceptance of such a weak piece of evidence for corroborating the
prosecution evidence could not be accepted. The learned counsel
also invited our attention to the fact that though from the
beginning, the case of the prosecution was that there were, in
all, four accused persons; the fourth accused person besides the
three appellants could neither be identified nor brought before
the law. Therefore, the whole prosecution case had become
mysterious. As regards the evidence of the eye witnesses, the
learned counsel pointed out that the said evidence of Deepa (PW-4)
and Indira (PW-8) was unnatural, apart from the fact that it was
riddled with material contradictions and omissions and was
contradictory inter se. The learned counsel also commented upon
the medical evidence suggesting that the said evidence was not
commensurate with the eye witness account. As regards the rest of
the circumstantial evidence, the learned counsel pointed out that
it was not trustworthy. Insofar as the verdict of the High Court
in confirming death sentence was concerned, the learned counsel
urged that this was not a rarest of rare case though as much as
four persons had lost their lives.

12. Shri Raj, learned counsel appearing on behalf of the
accused No.2, Sunil adopted the arguments of Shri Agrawal insofar
as they pertained to the evidence of the eye witnesses as also the
other aspects of the case. However, Shri Raj invited our
attention to the fact that after reaching the Hospital, the
deceased Prabhu had made a dying declaration which was recorded by
Doctor Shri S.S. Anakal (PW-5). He pointed out that the said
dying declaration was counter signed by the Investigating Officers
and the said dying declaration also bore the thumb impression of
deceased Prabhu Krishnan Nochil. Learned counsel further pointed
out that this dying declaration formed part of the charge-sheet
and was supplied to the accused persons along with the same. He
further pointed out that though this dying declaration was not put
to the witness, Dr. Anakal (PW-5) during the Trial before the
Sessions Judge, an application to that effect was filed before the
High Court and the High Court rejected the same. Learned counsel
issued a notice under Section 294 (2) Cr.P.C. to the Public
Prosecutor to admit this document whereupon the Public Prosecution
has admitted the said document. According to the learned counsel,
therefore, the non-consideration of the said dying declaration
very seriously prejudiced at least accused No.2, Sunil whose name
was not to be found in the said dying declaration. Learned
counsel, therefore, urged that the participation of Sunil (accused
No.2) was highly suspicious, more particularly, in view of the
fact that the identity of Sunil was not established by the
prosecution either by holding Test Identification Parade or even
in the Court hall as the witnesses had not specifically identified
the accused persons individually. Shri Raj also urged that the
absence of Sunil’s name in the First Information Report given by
Balan (PW-1) speaks volumes and was not realized by the Courts
below. Shri Raj further urged that there was no reason for the
Courts below to presume that Sunil Yadav was a friend of Dilip and
Manoj as there was no evidence brought on record regarding their
acquaintance and even the prosecution had not collected any
evidence to establish the nexus between accused No.2, Sunil and
the other two accused persons. Shri Raj, therefore, argued that
accused Sunil was bound to be given the benefit of doubt.

13. It has come in evidence of Deepa (PW-4) that immediately
after the incident, though injured seriously, she managed to call
Balan (PW-1) on his landline and narrated the incident to him.
She undoubtedly claims that she had taken the names of Dilip (A1),
Manoj (A-3) and Sunil (A-2) as also one more person as the persons
who had assaulted her family members and herself. Because of the
presence of mind of Deepa to call Balan, Balan immediately went
into action and firstly contacted Shashidharan (PW-2), also a
resident of Andheri as Balan. Both these witnesses were related
to the family inasmuch as while Balan is the husband of PW-8,
Indira’s sister, Shashidharan is the husband of Balan’s wife’s
sister meaning that she is the third sister of Indira though Balan
does not specifically say so in his evidence. Shashidharan
deposed that he was woken up by Balan at about 1.30 a.m. and was
told that Dilip, Manoj and Sunil along with their associate had
assaulted the members of Nochil family. Significantly enough,
Sushma, wife of deceased Prabhu was also at that time present in
his household, she having come to his house for staying allegedly
on account of the threats given to her by Dilip. Shashidharan
then seems to have contacted his brother Gopal Krishnan and with
his help contacted Vasai Police Station and informed about the
incident. However, he was informed by Vasai Police Station that
Waliv Kherpada where incident had taken place comes within the
jurisdiction of Manikpur Police Station. According to this
witness, he narrated this incident to Manikpur Police Station by
calling them but they refused and instead asked them to contact
Waliv Police Station.Thus, they left Andheri at about 3 a.m. and
reached the spot of occurrence Waliv at about 4 a.m. After
reaching there they came to know that the injured Deepa and Indira
along with injured Prabhu had been sent to the Primary Health
Cenre of Wasai. The claim of Shashidharan (PW-2) is that he and
Balan reached Manikpur Police Station at about 5 a.m. where Balan
lodged the complaint. We have seen the said report made by Balan
vide Exbt. P-27. It is to be seen specifically that in that
report he informed that Deepa Nochil had informed him at about
1.15 a.m. on 17.05.2004 that Dilip who was the brother of her
sister-in-law Sushma and his three associates had trespassed into
the house and had beaten all the inmates and had also given knife
blows to them and they still were engaged in assault and,
therefore, Balan should come as early as possible to Vasai.
Significantly enough, the names of accused Manoj and accused Sunil
are not to be seen in this report. It has also come in the report
that since Dilip and his family members did not approve of love
marriage of Sushma with Prabhu and inspite of their opposition
Sushma had married Prabhu; hence Dilip and his associates had
given blows with sharp weapon to his brother-in-law Krishnan,
sister-in-law Indira, her daughter Deepa, her son Prabhu and his
son, Bijit. It was also pointed out that Krishnan and Bijit had
died in the attack and Indira, her dauther Deepa and her son
Prabhu were seriously injured and were taken to the dispensary.
Though in his evidence Balan (PW-1) insisted that he had also told
the names of Dilip (A-1), Manoj (A-3) and Sunil (A-2), the names
of Manoj and Sunil are not to be found in the FIR. Though there
was a reference that Dilip (A-1) was accompanying three other
associates, the witness was specific in asserting that from the
spot of occurrence he did not go directly to the dispensary but
went to the Police Station first.

14. The further significant thing about the FIR is that there
is no reference to the death of Abhayraj who had also lost his
life. It is slightly unusual that though this witness as per his
admission knew Abhayraj, there is no reference of the name of
Abhayraj in the FIR. Shri Gaurav Agrawal, learned counsel tried to
take advantage of this and pointed out that the name of Manoj (A-
3) was not to be found in the FIR and that advantage must go to
Manoj on that account. It is also seen that the witness had also
failed to speak about the body of Abhayraj. In our opinion,
though the omission of names of Manoj and Sunil is significant,
much importance cannot be given to this omission. The FIR was
after all given by a person who had seen the body of his young son
having been brutally murdered. He had also seen the dead body of
his brother-in-law and had also come to know that the other three
members of the family of Krishnan were also seriously injured in
the incident. The witness is bound to be excited and some scope
would have to be given to the mental state of the witness at that
time. The significance of this omission will be considered when
we individually consider the case of each accused. The Trial
Court as well as the High Court have not attached much importance
to this omission and rightly so. However, the fact must be noted
at this juncture that though this witness PW-1, Balan had come to
know about the role played by Manoj (A-3) and Sunil (A-2), their
names were not mentioned in the report. After these two persons
went to the Primary Health Centre from the Police Station an
Ambulance was called as all the three injured persons were in a
serious condition and possibly could not have been treated in the
Primary Health Centre and, therefore, they had to be shifted to
the other Hospital.

15. At that time, during the journey to the hospital, Prabhu is
stated to be conscious and had told the names of Dilip, Manoj and
Sunil to Shashidharan who was accompanying the injured in the
Ambulance Van. That is the claim of Shashidharan (PW-2). As per
his claim, Prabhu had taken the names of Dilip, Manoj and Sunil
and one more person as the persons who had inflicted blows with
knife on Prabhu. The witness described Manoj (A-3) and Sunil (A-
2) as the friends of Dilip (A-1). The witness was candid enough
to tell that he did not know them personally and further claimed
that Prabhu had told him that they were Dilip’s friends. His
statement was recorded on 17.05.2004 in the evening. He denied
and was contradicted on the question of Balan’s wife accompanying
them. However, he asserted further that the wife of Balan was not
accompanying them. That, in our opinion, is an insignificant
contradiction. Other omissions were also proved in the evidence
but they are all insignificant omissions. Sushma was allegedly
present at the time when Balan came to her house and a suggestion
was given to him that they enquired from Sushma about the names of
Manoj and Sunil. He, of course, refuted this suggestion. He was
candid enough to admit that he did not know the names of fathers
and surnames of Manoj and Sunil. He had not even seen Manoj and
Sunil till then. He deposed in the Court that he had never gone
to the house of Dilip at any time nor talked to any of his family
members. There is a significant omission in his statement to the
effect that he admitted that he had not stated before the police
that Sushma’s brother Dilip, Manoj, Sunil and one more person
inflicted blows with knife. He also asserted that he had not
stated that Prabhu had told him that Manoj and Sunil were Dilip’s
friends. It was specifically suggested that Prabhu had never
disclosed him about Manoj and Sunil being Dilip’s friends. It was
also suggested that Prabhu had not disclosed about the assault by
these three persons on Prabhu’s family members. He obviously
refuted those suggestions.

16. From the evidence of these two important witnesses one of
whom was the author of the FIR what transpires is that while the
role played by Dilip has been reflected in the FIR, the roles
played by Manoj and Sunil are not to be seen as reflected in the
FIR. Even as regards the alleged disclosure by deceased Prabhu to
this witness in the Ambulance Van would depend upon the evidence
of Deepa and Indira who were also present in the same van.
17. When we see the evidence of Deepa, it is seen that she was
an injured witness. As per the evidence of PW-9, Dr. Mahendra
Chandak, Deepa had suffered as many as four contused lacerated
wounds over right side of upper and lower lip, left shoulder, left
lumber region with omentum protruding out and over left gluteal
region.

18. All the injuries and, more particularly, the injury Nos. 3
and 4 do appear to be serious injuries which have been reflected
in medical Exbt.57 and the injuries were stated to be possible
with sharp edged weapon like articles 6, 17 and 19. Therefore,
there can be no dispute about the presence of Deepa on the scene.
In her evidence Deepa asserted that she also knew the accused in
the case and then points out that she heard the knocking of the
door at about 1.15.-1.30 a.m. She then saw the door being opened
by the father after putting on the electric light and the further
fact that as soon as the door was opened accused Manoj, DIlip and
Sunil and one unknown person entered the house and they were all
armed with knife. She asserted that accused Dilip (A-1) and Manoj
(A-3) started stabbing her father. She was terrified and,
therefore, shouted and her brother Prabhu also came and when he
intervened accused Dilip (A-1) and Manoj (A-3) stabbed him also on
his stomach and chest. She then claims that she tried to
intervene to save her brother. Accused Dilip told accused Sunil
and the unknown person to take Prabhu outside and accordingly
Sunil and the other unknown person took Prabhu outside. She then
claimed that Dilip and Manoj then rushed towards her. However,
Bijit came out and caught hold of Manoj and urged him not to
assault Deepa and, therefore, accused Manoj started inflicting
blows with knife on the stomach and chest of Bijit also. It is
further stated that Dilip and Manoj rushed towards her and
inflicted knife blows on face, stomach and other parts of her
body. She shouted and it is at that time her mother Indira came
and she was also given blows by Manoj and Dilip because of which
her mother fell down. She then adds that afterwards accused Sunil
entered the room and deceased Abhayraj also entered the room and
Sunil inflicted the blow with knife on him and he ran away and was
followed by Sunil. At that point of time, according to her, Manoj
dropped the knife in his hands and then accused Dilip and Manoj
left. She also asserted that she had told the names of Manoj,
Dilip and Sunil and one more unknown person when she telephoned
her uncle Balan (PW-1). According to her, she heard her brother
Prabhu who was lying outside the front door calling ‘mummy mummy’.
She, thereafter became unconscious and regained her consciousness
only on the next day in Bhagwati Hospital where she was admitted
for about 1-1/2 months. A statement came to be recorded only on
18.05.2004. In her examination-in-chief, she has asserted that
she knew Manoj and accused Sunil as Dilip’s friends. She was
extensively cross-examined as regards the topography of the place
and the topography of her house as also the role played by him.

19. Before we consider her evidence, it must be noted that
though she did not know the father’s name of accused Manoj Paswan
and further though she did not know about his job, business or
service she asserted that prior to the marriage of Prabhu with
Sushma, accused Manoj had interacted with her on many occasions.
She also asserted that Manoj lived in the house of accused Dilip
only. She also asserted that after the marriage between Prabhu
and Sushma, she had not gone to the house of Dilip. She also
denied the suggestion that Dilip had never come to their house
after the marriage of Sushma. She asserted that accused Dilip had
come to their house and given threats. In her cross-examination,
it has come that Abhayraj was her next door neighbour and used to
exchange the messages between Prabhu and Sushma. She has also
spoken about the efforts on the part of Dilip’s sister Kalpana and
Dilip’s mother to persuade Sushma to come back to her house even
after the marriage.

20. Significantly enough, in her lengthy cross-examination,
very little is asked to her about the actual incident of assault.
This witness was the most natural witness and had also the
opportunity to watch the dastardly attack and she had withstood
her cross-examination extremely well insofar as the attack by
accused Dilip and Manoj was concerned. She was not injured till
her father, deceased brother Prabhu and Bijit were attacked by the
accused persons. A wild suggestion was thrown to her about the
fact that she had not seen the incident as she was also being
assaulted with her mother, which Deepa has, of course, refuted.
Again a wild suggestion was thrown at her that the unknown person
had disconnected the electric supply and the telephone connection
and thereafter, the incident took place. Again one fantastic
suggestion was given to her that on the night of incident her
brother and Abhayraj had gone to Shivaji Nagar and consumed liquor
and they quarreled there and Abhayraj was killed at Shivaji Nagar
and thereafter those unknown persons chased her brother up to
their house. Some omissions were shown in her evidence and she
admitted that she had not stated that all the four persons were
armed with knife. She also accepted that she had not given the
description of knife since she was not asked. Insofar as the
cross-examination at the instance of accused No.2, Sunil is
concerned, one very significant fact has come in her evidence to
the effect that she asserted that she had told the names of Sunil
and Manoj as Dilip’s friends. She had accepted that such fact was
not written in her statement. She had also stated before the
police that accused Sunil and the unknown person took Prabhu out
of the room and she did not know as to why this fact is not
written in her statement before police. She stated that it was
not true to say that she made a false statement that Sunil was
Dilip’s friend. She further stated it was not true to say that
she made a false statement that her father opened the door and
accused Sunil and others entered the house armed with knives. She
also stated that it was not true to say that she made a false
statement that accused Sunil and one unknown person took Prabhu
out of the room as stated.

21. Inspite of all these omissions which have been proved, we
are convinced that Deepa had seen all the three accused persons.
Not only that, she had also identified all the three accused
persons. She had no reason not to identify Dilip and Manoj who
were staying almost in her neighbourhood. Her assertion that
Manoj was residing in Dilip’s house has come in her crossexamination
and has not been explained anywhere. As far as
accused No. 2, Sunil is concerned, it must be noted that a poor
attempt was made that Yogita who was her friend had also a brother
called Sunil. Merely because the witness had not stated that
Sunil and Manoj were the friends of Dilip, it cannot be said that
Sunil was not identified. Her claim that she knew all the accused
persons could not be demolished in spite of the lengthy crossexamination.
22. Shri Raj, learned counsel tried to submit that she had not
identified the accused persons individually in the Court. The
argument is clearly incorrect. If she had claimed that she had
known all the accused persons that could have been challenged in
the cross-examination by asking her to identify the accused
persons. The defence backtracked on that issue and did not choose
to ask her to identify the accused individually. It was obvious
that if she very well knew Dilip and Manoj, which claim cannot be
disputed, the remaining third accused would be Sunil and she would
be in a position to identify him individually and probably that is
why the defence did not take the chance. The other two accused
were also related to Dilip, being father and mother of Dilip.
Therefore, it was obvious that the witness had meant only accused
No. 2 as Sunil. The evidence of the witness about the role played
by Dilip and Manoj, to begin with, and thereafter by Sunil in
assaulting Abhayraj has gone almost unchallenged. There is
practically nothing in the cross-examination and the whole crossexamination
was only on fringes. She also went to the extent of
telling the colours of the clothes which were worn by Bijit and
her father as also described the clothes worn by Prabhu. That
claim has also not been disputed nor demolished in crossexamination.
Very strangely, the cross-examination was directed
at the omissions of the claims which the witness had not made in
her examination-in-chief and on the basis of the answers given in
cross-examination which was not permissible. The whole evidence
of the witness is extremely natural and the witness has not tried
to unnecessarily implicate anybody else. She has not assigned any
role to the unknown person. She has also not exaggerated by
stating that Sunil also assaulted herself, Indira or Bijit. It is
only as regards Abhayraj that she has attributed the assault to
Sunil against him. Her whole evidence being the evidence of
injured eye-witness was wholly credible as has been held by the
Trial Court as well as the High Court. Even her evidence, insofar
as the assault on herself and her father and Bijit is concerned,
is supported by the medical evidence which evidence we will
consider in the latter part of the judgment. We, therefore,
cannot accept the contention raised by Shri Agrawal that Manoj was
not identified merely because his name did not appear specifically
in the FIR. We also reject the contention of Shri Raj to the
effect that Sunil was not identified at all by this witness. This
takes us to the evidence of Indira, another witness injured during
the assault.

23. Indira also asserted in her evidence that she knew the
accused persons including Sunil (accused No.2) and accused Manoj
(accused No.3). She was woken up owing to the shrieks of Deepa
and Krishnan. She saw that Deepa and her husband were in the
injured condition when she entered the TV room. It is significant
that at that time, accused Dilip and accused Manoj rushed towards
her and inflicted blows with knife over her neck, chest, face and
hands. She has also seen accused Sunil (accused No.2) entering
the room at that time which version completely tallies with the
version of Deepa. She also attributed the neck injury of Abhayraj
to accused Sunil. It is significant that she has not referred to
deceased Prabhu who had been dragged outside. She then asserted
that accused Sunil chased Abhayraj who ran outside the house from
the back door. She asserted that Prabhu disclosed to her that
Dilip (accused No.1), Manoj (accused No.3) and Sunil (accused
No.2) and one more person had assaulted him with knife. She has
also extensively been cross-examined. In her cross-examination,
she had rightly asserted that when she entered the room, Prabhu
was not present in the room and Deepa had also fallen down. She
was asked about Deepa Kakad who resided adjacent to their house.
There is an important omission about Prabhu’s having stated to her
that it was accused Dilip, Manoj and Sunil who had assaulted him.
In spite of that omission, it cannot be forgotten that Indira is
an injured eye-witness herself and had seen assault on deceased
Abhayraj by Sunil (accused No.2). She has also seen Dilip and
Manoj. Her claim in the examination-in-chief that she knew
accused Dilip (accused No.1), Manoj (accused No.3) and Sunil
(accused No.2) and further claim that Sunil and Manoj were friends
of Dilip has not been demolished at all in the cross-examination.
In fact there does not appear to be any challenge to that claim.
It must be noted that both Deepa (PW-4) and Indira (PW-8) have not
spoken about any dying declaration having been made by Prabhu to
PW-2, Shashidharan while they were being taken to the Hospital,
probably because both Deepa and this witness, Indira were
unconscious while Deepa regained her consciousness only in the
Hospital. This witness was very seriously injured and regained
her consciousness after quite some time. The only crossexamination
on behalf of accused No.2 was that there were a few
persons with the name Sunil in their locality. She also had not
stated that Sunil was a friend of Dilip. In our opinion, these
omissions do not help the defence as there was no reason for these
witnesses to falsely implicate Sunil. There is really no strained
relationship of this witness with Sunil at least shown in their
cross-examination. Under these circumstances, the witnesses would
gain nothing by falsely implicating Sunil and Manoj. There is
absolutely no cross-examination in respect of the identity.
Therefore, the evidence of these two witnesses was rightly
believed by the Trial Court as also by the High Court. In our
opinion, this clear cut eye-witness account by Deepa and Indira is
enough to convict Dilip (accused No.1), Manoj (accused No.3) and
accused Sunil (accused No.2).

24. During the arguments before us Shri Raj gave a notice under
Section 294 (2), Cr.P.C. to the State counsel to admit the
document which is so-called dying declaration of Prabhu dated
17.05.2004. This dying declaration was a part of the charge-sheet
and the copy thereof was supplied to the accused persons. Very
strangely, this dying declaration was not brought forth on record
by the prosecution. The said dying declaration now having been
admitted by the Public Prosecutor can be read in evidence. It is
counter signed by Dr. S.S. Anakal (PW-5). It is also counter
signed by the Investigating Officer Kailash Bharve. It bears a
thumb mark. This was made by deceased Prabhu wherein it has been
stated that at about 1.30 a.m. Prabhu’s father was assaulted by 2-
3 persons with knife and when he came out, he was also assaulted.
At that time accused Dilip and accused Manoj inflicted knife blows
on him and at that time two more persons entered the house and
started assaulting them. Further it is stated that while Dilip
and Manoj were trying to assault his mother, he tried to stop
them. He has also suggested that since he had married Dilip’s
sister Sushma, Dilip, Manoj and their other associates had entered
their house and assaulted them. In fact when the matter was
pending before the High Court for confirmation, the accused filed
an application under Section 391 of the Code of Criminal Procedure
to take on record this dying declaration. We have seen that
application. In that application production of additional
evidence under Section 391, Cr.P.C. was suggested on the ground
that though such a dying declaration was given to Dr. S.S. Anakal
by deceased Prabhu, the same was not brought on record by the
prosecution and the same was suppressed from the defence before
the Trial Court. It was stated to be a vital omission on the part
of the prosecution and it was further claimed that it went to the
root of the matter as far as the culpability of accused Sunil is
concerned. It was also pointed out that in the said dying
declaration, the name of Sunil Yadav was not mentioned and that
due to inadvertence, the said dying declaration was not confronted
during the evidence of PW-5, Dr.S.S.Anakal. The application was
rejected by the High Court. Very strangely, this application was
opposed by the Public Prosecutor as also the learned counsel
appearing for Dilip (accused No.1) and Manoj (accused No.3). The
High Court observed in its order dated 01.09.2007 that though Dr.
Anakal was examined as witness and though the copy of this dying
declaration was furnished to all the accused persons during the
trial, no question was put with regard to Prabhu’s dying
declaration by the counsel for accused No.2, Sunil before the
Trial Court. It was on these grounds that the High Court observed
that in view of the strong opposition by Dilip (accused No.1) and
Manoj (accused No.3) to the application, the High Court was not
inclined to exercise its discretion in favour of the appellant and
on that ground the application stood rejected.

25. To say the least, we are surprised by the order passed by
the High Court. In fact the proceedings before the High Court
were in the nature of an extended trial. The confirmational
proceedings are always the original proceedings. The High Court
was dealing with the accused who was facing death sentence.
Therefore, merely because no question was asked to Dr. S.S. Anakal
(PW-5), the document could not have been held back and an
opportunity was bound to be given by getting the document proved
if necessary by re-calling Dr. Anakal by the High Court itself.
The task of the Public Prosecutor is not only to secure the
conviction, he has a duty to the Court. He is an officer of the
Court and, therefore, in all fairness, firstly the document should
have been brought on record and secondly, even if Dr. Anakal who
recorded the dying declaration was not confronted with that dying
declaration, that opportunity could not have been denied before
the High Court since the proceedings before the High Court were in
the nature of original proceedings and an extended trial. We are
surprised that the Public Prosecutor opposed the application.
Fairness of the trial is the basic requirement in the criminal
law. We think that the Public Prosecutor ought not to have
opposed the production of the document. We, therefore, allowed
the production of the document.

26. In a reported judgment Rampal Pithwa Rahidas & Others. v.
State of Maharashtra [1994 Supp (2) SCC 73] somewhat similar
situation occurred where this Court reiterated the duty of the
investigating agency to act honestly and fairly. In that case a
communication-cum-application by an approver, before he was made
approver wherein he had claimed the bail on the ground that he
knew nothing about the offence and he was unnecessarily being
incarcerated, was not confronted to him at the time of trial. The
Court took the view that though the witness was not confronted
with that statement and in a strict sense it was not brought
before the Court, yet the same communication could be looked into
by the Courts. The Court also observed in paragraph 37 as under:
“The quality of a nation’s civilization,” it is said,
“can be largely measured by the methods it uses in the
enforcement of criminal law” and going by the manner in which
the investigating agency acted in this case causes concern to
us. In every civilized society the police force is invested
with the powers of investigation of the crime to secure
punishment for the criminal and it is in the interest of the
society that the investigating agency must act honestly and
fairly and not resort to fabricating false evidence or
creating false clues only with a view to secure conviction
because such acts shake the confidence of the common man not
only in the investigating agency but in the ultimate analysis
in the system of dispensation of criminal justice. Let no
guilty man go unpunished but let the end not justify the
means! The Courts must remain ever alive to this truism.
Proper results must be obtained by recourse to proper means –
otherwise it would be an invitation to anarchy.”

27. Shri Raj urged that we should send back the matter for
further examination of Dr. S.S. Anakal and, if necessary, the
other witnesses like the Investigating Officer who has also
counter singed the said dying declaration. Shri Gaurav Agrawal
also urged that in case the dying declaration is sent back then
further opportunity will have to be given even to accused Nos. 1
and 3 to further cross-examine the witnesses as the dying
declaration clearly goes against at least accused Nos. 1 and 3.

28. Ordinarily, we would have sent back the matter. However,
we cannot ignore the fact that all the three accused persons are
facing death sentence awarded by the Trial Court and confirmed by
the High Court. We would not, therefore, increase the agonies of
the accused persons by sending back the matter to the High Court;
in stead, since accused No.1 and 3 did not have opportunity to
cross-examine the witnesses about the document, we will not
consider the documents against accused Nos. 1 and 3. Insofar as
accused No.2, Sunil is concerned, it is true that his name does
not appear in the said dying declaration but in our considered
opinion that would be of no consequence for the simple reason that
the evidence of the eye-witness completely fixes the criminal
liability on the part of accused No.2, Sunil. Therefore, even if
the said dying declaration is somewhat helpful to Sunil, that by
itself will not wipe out the evidence of the two eye-witnesses
whose evidence was credible as held by the Trial Court as well as
the Appellate Court.

29. Thus in our view, the conviction of all the three
appellants before us as ordered by the Sessions Judge and
confirmed by the High court is correct and we confirm the same.

30. This, however, takes us to the question of sentence. This
is a case where the death sentence has been ordered by the
Sessions Judge which has been confirmed by the High Court. We
must, at this juncture, take the overall circumstances while
taking into consideration the death sentence awarded by the Courts
below. As held in Machhi Singh v. State of Punjab [1983 (3) SCC
470] as also in Bachchan Singh v. State of Punjab [1980 (2) SCC
684], we must weigh the circumstances justifying the grant of
death sentence vis-à-vis the mitigating circumstances. The High
Court considered the following circumstances justifying the
imposition of death penalty”

“(a) Helpless victims
(b) Unarmed victims
(c) Victims woken from sleep at midnight
(d) Manner of inflicting injuries, 20-30 serious injuries on
death of the deceased, whereas even a single injury would
have been sufficient to kill, shows the barbarous attitude;
(e) Attacking ruthlessly six persons, Deepa and Indira were
let off presumed to be dead, seeking to wipe off the entire
family;
(f) Attack on every vital organ;
(g) Young boy Bijit was brutally assaulted;
(h) Not only Prabhu, even the messenger boy Abhayraj was
brutally assaulted;
(i) The time chosen was past midnite hence clearly
premeditated;

(j) Assault on lower caste based on caste hatred:
(k) Marriage took place on 29.10.2003 and the assault was on
17.05.2004 i.e. after a lapse of seven months. As Dilip was
totally opposed to the marriage, the above attack was highly
premeditated and not at the heat of moment.
31. The High Court relied on the judgment of Dhananjoy
Chatterjee @ Dhana v. State of West Bengal [2004 (9) SCC 751] and
quoted extensively therefrom. One other case Ronny alias Ronald
James Alwaris & Ors. v. State of Maharashtra [1998 (3) SCC 625]
was also relied on by the High Court. The High Court extensively
quoted from the judgment in Ediga Anamma v. State of Andhra
Pradesh [1974 (4 )SCC 443] and State of U.P. v. Dharmendra Singh &
Anr. [1999 (8) SCC 325] as also Lehna v. State of Haryana [2002
(3) SCC 76].

32. However, even a close scrutiny of the judgment does not
show any effort on the part of the High Court to consider the
mitigating circumstances, though such exercise has been done by
the Trial Court in paragraph 42 of its judgment. The mitigating
circumstances considered by the Sessions Court are:
“1) The age of the accused persons being between 20-25 years;
2) Their clean past, in the sense they were not involved in any
offence previously”

33. Shri Raj and Shri Gaurav Agrawal addressed us extensively
on the mitigating circumstances. As far as accused No.1, Dilip
and accused No.3 Manoj are concerned, the learned counsel first
pointed out that apart from the two circumstances considered by
the Sessions Judge, namely, the young age of the accused persons
and there being no criminal antecedents, there were number of
other mitigating circumstances which the Courts below had not
considered. It was submitted that accused No.1, Dilip must have
felt morally justified in attacking the family members due to the
fact that his younger sister had revolted against the family and
got married to Prabhu, a Keralite. Therefore, to preserve the
family honour, Dilip had taken the revenge of the so-called insult
of his family. It was also pointed out that since Manoj was the
resident of the same house, he also may have been persuaded to
join the crime as also Sunil who was all through described as the
friend of Dilip.

34. Learned counsel further argues that insofar as Manoj was
concerned, he apparently had no enmity though he might have felt
it necessary to display the loyalty to the family in whose house
he was living and it could have been only out of that, that the
murders took place. Learned counsel further argued that the
deaths of Bijit and Abhayraj were in reality not the intended
deaths but they became the victims of the circumstances since
Bijit tried to stop the assailants. He was not supposed to be
present there but his fate drew him in the house and he became the
prey of the murderous assault. Perhaps nothing would have
happened had he not come to the room. He not only came in the
room but also tried the stop the assailants from assaulting.
35. As regards Abhayraj, learned counsel pointed out that he
was not there in the beginning but he being the immediate
neighbour must have come attracted by the shrieks and lost his
life. According to the learned counsel, there is very little or
almost no evidence available as to how Abhayraj was killed and by
whom. The counsel pointed out that the only allegation was that
Sunil (A-2) dealt a blow on his neck and when he ran away he was
followed by Sunil and the unknown person. Learned counsel also
highlighted that the possibility of the said unknown person being
responsible for the death of Abhayraj and Prabhu could not be
ruled out since, as per the evidence of Deepa, Sunil and that
unknown person took Prabhu out and then it is not established as
to how many blows were dealt on Prabhu and, therefore, Sunil alone
could not be held to be responsible. There may be a substantive
contribution on the part of that unknown person to the crime, at
least for the murder of Prabhu and Abhayraj. Learned counsel
further highlighted the role of the unknown person and the fact
that the said unknown person remained a mysterious part of the
investigation and trial. Therefore, it was ultimately urged that
it could not be deemed to be an assault with a common intention to
wipe out the whole family as has been tried to be suggested by the
prosecution.

36. Learned counsel further submitted that it could not be said
that the accused could not be reformed, particularly, because
their antecedents were clean or at least the prosecution was
unable to point out any criminal activity in the past on the part
of the accused persons.

37. Shri Raj, appearing for accused No.2, Sunil also supported
these arguments and added that, in reality, Sunil could not be
attributed with the brutal attack. Undoubtedly, Sunil did not
assault either Krishnan Nochil or Prabhu, to begin with, he was
merely attributed assault on Prabhu after Prabhu was dragged out
for which there was no evidence as to whether it was he or other
unknown person who had given blows to him. As far as the
allegation regarding Abhayraj is concerned, learned counsel
pointed out that like Prabhu, there was no evidence available as
to how many blows had been given on Abhayraj’s body and by whom.
Learned counsel pointed out that it was only one blow which was
given to Abhayraj. Learned counsel also urged that it must have
been because of the friendship between the other accused and Sunil
that Sunil had accompanied the accused persons but it could not be
said that Sunil also shared the common intention to wipe out the
whole family. In fact, Sunil did not act, to begin with, insofar
as the assaults on Krishnan and Prabhu were concerned. It was
further pointed out that Sunil was merely 19 years of age at the
time of incident.

38. The Trial Court has made some exercise in weighing the
mitigating circumstances though such conscious effort does not
seem to have been made by the High Court. In terms of the law
laid down in Bachan Singh’s case (cited supra) as also in Machhi
Singh’s case (cited supra) and number of subsequent decisions of
this Court thereafter, it would be now our task to weigh those
circumstances.

39. All murders are foul, however, the degree of brutality,
depravity and diabolic nature, differ in each case. It has been
held in the earlier decisions of this Court which we may not
repeat that the circumstance under which the murders took place,
differ from case to case and there cannot be a straightjacket
formula for deciding upon the circumstances under which the death
penalty is a must.

40. Insofar as the accused No. 1, Dilip is concerned, there can
be no doubt that he was the chief architect of the crime. There
can also be no doubt that he entered the house of the victims in
the dead of night. Obviously, the visit was not intended to be a
courtesy call. It was obvious that he had visited being duly
armed and in company of three other friends. What was then the
psychology of Dilip, accused No.1 and why did he wait for seven
months are the relevant questions which must attract our
attention.

41. Sushma was the younger sister of this accused. It is a
common experience that when the younger sister commits something
unusual and in this case it was an intercaste, intercommunity
marriage out of the secret love affair, then in the society it is
the elder brother who justifiably or otherwise is held responsible
for not stopping such affair. It is held as the family defeat.
At times, he has to suffer taunts and snide remarks even from the
persons who really have no business to poke their nose into the
affairs of the family. Dilip, therefore, must have been a prey of
the so-called insult which his younger sister had imposed upon his
family and that must have been in his mind for seven long months.
It has come in the evidence that even if the marriage was
performed with Prabhu, there were efforts made by the family
members of Dilip to bring Sushma back. It has come in evidence
that mother of Dilip tried to lure back Sushma and so did her
other married sister Kalpana who actually went on to meet Sushma
in her college. Those efforts paid no dividends. In stead,
Sushma kept on attending the college thereby openly mixing with
the society. This must have added insult to the injury felt by
the family members and more particularly, accused Dilip. Why did
he wait for seven months? The answer lies in the fact that Sushma
became pregnant and thus reached a point of no return. Till such
time as she became pregnant, there might have been some hopes in
the family to win her back but once she became pregnant, even that
distant hope faded away and, in our opinion, that is the reason
why this ghastly episode took place. As if all this was not
sufficient, Dilip himself must have had the feeling of being
cheated. It is not that Dilip did not know Prabhu who was living
only three houses away from his house. The secret love affair
which went on between Sushma and Prabhu for which Abhayraj acted
as a messenger must have raised the feeling of being cheated by
Prabhu. This was further aggravated because of the so-called
higher status of a Brahmin family on the part of Dilip and socalled
non-Brahmin status of Prabhu. It has come on record that
Sushma was moved to Andheri at the house of Shashidharan and this
ought to have added as a spark which resulted in tornado. Dilip
undoubtedly was a young person not even having crossed his 25
years of life and not having any criminal antecedent. If he
became the victim of his wrong but genuine caste considerations,
it would not justify the death sentence. The murders were the
outcome of social issue like a marriage with a person of so-called
lower caste. However, a time has come when we have to consider
these social issues as relevant, while considering the death
sentence in the circumstances as these. The caste is a concept
which grips a person before his birth and does not leave him even
after his death. The vicious grip of the caste, community,
religion, though totally unjustified, is a stark reality. The
psyche of the offender in the background of a social issue like an
inter-caste-community marriage, though wholly unjustified would
have to be considered in the peculiar circumstances of this case.

42. No doubt, the murder was brutal. However, it has been
pointed out by Shri Gaurav Agrawal as also Shri Raj that this was
not a diabolic murder nor had the murderers acted in depravity of
their minds by disfiguring the bodies. The incident must have
taken place barely within 10-15 minutes when they came, assaulted
the family members and left. True it is that the two ladies who
were assaulted were helpless and so were Krishnan and Prabhu. But
when we weigh all the circumstances, particularly, about the
mindset of Dilip, the cruel acts on the part of the accused would
not justify the death sentence. The disturbed mental feeling or
the constant feeling of injustice has been considered by this
Court as a mitigating circumstance in Om Prakash v. State of
Haryana [1999 (3) SCC 19] where the accused had committed the
murder of seven persons. That is also an indicator to the fact
that mere number of persons killed is not by itself a circumstance
justifying the death sentence. In fact in one other case reported
as Ram Pal v. State of U.P. [2003 (7) SCC 141] total 21 persons
were killed as the accused trapped them in a house and burnt the
house. Shri Karanjkar, appearing on behalf of the State very
strongly contended as against this, that in the present case while
four persons were killed, two helpless ladies were also assaulted
and very seriously injured and it is only because the accused
thought that those two ladies had died and left, that the lives of
Deepa and Indira were spared. Therefore, in the circumstances of
this case, we must lean in favour of the death sentence. In a
death sentence matter, it is not only the nature of the crime but
the background of the criminal, his psychology, his social
conditions and his mindset for committing the offence are also
relevant. No doubt in Ravji alias Ram Chandra v. State of
Rajasthan [1996 (2) SCC 175], this Court held as under:
“…The crimes had been committed with utmost cruelty and
brutality without any provocation, in a calculated manner. It is
the nature and gravity of the crime but not the criminal, which
are germane for consideration of appropriate punishment in a
criminal trial. The Court will be failing in its duty if
appropriate punishment is not awarded for a crime which has been
committed not only against the individual victim but also against
the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but it
should conform to and be consistent with the atrocity and
brutality with which the crime has been perpetrated, the enormity
of the crime warranting public abhorrence and it should “respond
to the society’s cry for justice against the criminal”….”

43. It is also true that this case was followed in as many as
six cases where the death sentence was approved of. However, in
his judgment reported as Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra [JT 2009 (7) SC 248] Hon. Sinha, J. pointed
out that this judgment is per incuriam as the law laid down
therein is contrary to the law laid down in Bachan Singh’s case
(cited supra) where the principle has fallen out to the effect
that the Court should not confine its consideration principally or
merely to the circumstances connected with the particular crime
but also give due consideration to the circumstances of the
criminal. It is because of this that we have ventured to consider
the mindset of accused No.1, Dilip and the vicious caste grip that
might have catapulted the crime committed by him. We would, thus,
follow Bachan Singh’s case (cited supra) and the principles
therein rather than following the narrow approach given in Ravji’s
case (cited supra).

44. Once we decide not to award the death sentence to accused
No.1, Dilip, the accused No.3, Manoj also deserves not to be given
death sentence. Even he is a person without any criminal
antecedents and he appears to have joined the company of Dilip
only out of his commitment as he was shown to be a resident of the
same house. We, therefore, do not think that even he deserves
death penalty. Accused No.2, Sunil has comparatively a lesser
role. Admittedly, he has not assaulted Krishnan or Prabhu, to
begin with. Who has assaulted Prabhu and Abhayraj is still not
clear, as it could also be that in the assaults the leading role
could have been taken by the unknown accused. In that view, he
also does not deserve the death sentence. The question is then
how are these accused persons to be dealt with. Ordinarily, they
would be liable to be awarded the life imprisonment.
45. However, in the peculiar circumstances of this case, mere
life imprisonment which is capable of resulting into 20 years of
imprisonment or 14 years of actual imprisonment may not be
adequate punishment for these accused persons. Considering the
overall circumstances, we feel that accused No.1, Dilip and
accused No.3, Manoj who assaulted Krishnan, Prabhu and the two
helpless ladies would deserve the life imprisonment. But we
direct that they shall not be released unless they complete 25
years of actual imprisonment. In case of Sunil, however, since he
had not assaulted the helpless ladies nor had he taken part in the
assault on Krishnan, he deserves the life imprisonment in the
ordinary sense. He shall have to undergo the 20 years of actual
punishment. Such a course has been held to be permissible in Haru
Ghosh v. State of West Bengal [JT 2009 (11) SC 240] pronounced by
this Bench, authored by V.S.Sirpurkar, J. This view was taken on
the basis of the law laid down in Swami Shradhanand @ Murali
Manohar Mishra v. State of Karnataka [JT 2008 (8) SC 27] where
this Court after considering several cases held that such a course
was permissible. We accordingly dismiss these appeals, however,
modifying the sentences as shown above. The appeals are disposed
off accordingly.
………………………..J.
[V.S. SIRPURKAR]
……………………
…..J.
[DEEPAK VERMA]
NEW DELHI
December 10, 2009.