ദിലീപ് തിവാരിയ്ക്ക് വധശിക്ഷ നല്‍കിയ ബോംബെ ഹൈക്കോടതി വിധി

( 1 )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO.2 OF 2007
(Reference made by the Ad-hoc Sessions Judge Palghar)
The State of Maharashtra
(Through Manikpur Police
Station, Taluka Vasai,
District Thane) .. Appellant
(Orig.Complainant)
V/s
1. Dilip Premnarayan Tiwari
Age 25 years,
R/o Room No.444, Khatrinagar,
Khairpada, Waliv, Taluka Vasai
2. Sunil Ramashray Yadav
Age 20 years,
R/o Waliv, Near Marathi School,
Taluka Vasai, District Thane
3. Manoj Tulshi Paswan
Age 22 years .. Respondents
(Orig.Accused Nos.1 to 3)
WITH
CRIMINAL APPEAL NO.1086 OF 2006
(By original Accused Nos.1 & 3)
1. Dilip Premnarayan Tiwari &
2. Manoj Tulsi Paswan .. Appellants
V/s
The State of Maharashtra .. Respondent
WITH
CRIMINAL APPEAL NO.156 OF 2007
(By original Accused No.2)
Sunil Ramashray Yadav .. Appellant
V/s
State of Maharashtra .. Respondent
Mr.S.R.Borulkar, Public Prosecutor with Mr.A.R.Patil
(APP) for the State.
Mr.Ramakant Patil Sr.Counsel with Mr.Shivraj Patil for
Respondent-Accused No.1 in Confirmation Case No.2/2007
(and for Appellant No.1 in Appeal No.1086/2006).
Mr.S.N.Raj with Mr.S.L.Shukla for Respondent-Accused
( 2 )
No.2 in Confirmation Case No.2/2007 (and for the
Appellant in Appeal No.156/2007).
Mr.Sandesh D.Patil for Accused No.3 in Confirmation Case
No.2/2007 (and for Appellant No.2 in Appeal
No.1086/2006)
CORAM : DR.S.RADHAKRISHNAN, &
SMT.R.S.DALVI, JJ.
DATE OF RESERVING JUDGMENT : 27th August, 2007.
DATE OF PRONOUNCEMENT OF JUDGMENT : 1st November, 2007.
JUDGMENT: (Per Dr.S.Radhakrishnan, J)
1. The above confirmation case has been filed by the
State of Maharashtra seeking confirmation of death
penalty imposed upon the original Accused Nos.1 to 3 by
the Additional Sessions Judge, Palghar, by his judgment
and order dated 8th September, 2006 for the offence
punishable under Section 302 read with Sectin 34 of the
Indian Penal Code. Over and above, the accused have
also been convicted for 10 years Rigorous Imprisonment
and a fine of Rs.5000/- each for the offence punishable
under Section 307 r/w 34 of the Indian Penal Code. In
addition the accused have been convicted for 3 years
Rigorous Imprisonment and a fine of Rs.1000/- each for
the offence punishable under Section 452 r/w 34 of the
Indian Penal Code.
2. Original Accused Nos.1 & 3 have challenged the above
judgment and sentence by their Appeal Nos.1086/2006, and
the original Accused No.2 has separately filed an Appeal
No.156/2007 challenging the same.
( 3 )
3. The brief facts are that one Prabhu and Sushma fell
in love and got married and therefter they were staying
with the parents of Prabhu. Prabhu belonged to a very
low caste "Ezhava" from the State of Kerala whereas
Sushma belonged to an upper caste of "Brahmin" from the
State of Uttar Pradesh. Both the families of Prabhu and
Sushma were staying at Khatrinagar, Khairpada, Waliv,
Dist.Palghar. It appears that the family of Sushma were
very much opposed to the said marriage and that there
were a number of threats from the family of Sushma. The
marriage between Sushma and Prabhu had taken place on
29th October, 2003 before the Registrar of Marriages,
Bandra, Mumbai. Original Accused No.1 - Dilip Tiwari is
the brother of Sushma and the original Accused Nos.2 &
3, viz.Sunil Yadav & Manoj Paswan are the friends of
original Accused No.1-Dilip Tiwari.
4. It is the case of the prosecution that 5 to 6 years
prior to the incident, Sushma and Prabhu developed
intimacy with each other and started meeting frequently
to each other, and the deceased Bachhu @ Abhayraj who
was residing near the house of Tiwari family was acting
as a messenger to exchange messages between the Prabhu
and Sushma. After some days, when the accused Dilip and
his mother Tulsidevi learnt about the love affairs
between Sushma and Prabhu and that Bachhu was acting as
a messenger, they threatened him not to enter their
house. It is the case of the prosecution that on one
( 4 )
occasion accused Tulsi (mother of Dilip) had seen Sushma
(her daughter) talking with Prabhu and on that count
Accused Dilip had assaulted Sushma with kicks and fist
blows, and had threatened to kill both Sushma and her
lover Prabhu if they were to marry each other. Thus
there was a strong opposition from Tiwari family to the
love affair and the love marriage between Prabhu &
Sushma, being an intercaste marriage. It is the further
case of the prosecution that on 29th October, 2003
Sushma married with Prabhu in Bandra Court and at that
time the relatives of Prabhu alone had attended that
marriage and nobody from Tiwari family or their
relatives were present. After the marriage Sushma
started residing with Prabhu (Nochil family), and since
last one year prior to the incident, Accused Manoj
Paswan was residing alongwith Tiwari. Kalpana who is
the elder sister of Sushma, is married and residing in
District Kanpur. As per the prosecution case, it
appears that the Sushma continued her education even
after her marriage with Prabhu at Vartak College, Vasai.
Accused Tulsi had once met Sushma in Vartak College and
asked her to leave husband (Prabhu) and had told Sushma
that her second marriage will be performed in Uttar
Pradesh. Sushma had denied that proposal. It appears
that 10 to 15 days prior to the incident Sushma’s sister
Kalpana had tried to contact Sushma on phone and asked
her to meet her outside the house, however, that phone
was attended by Sushma’s mother-in-law Indira (Prabhu’s
( 5 )
mother), and the Indira had asked Kalpana to come to
thier house to meet Sushma. As per the prosecution’s
case on 8th May, 2004 Kalpana had again contacted Sushma
on phone and thereafter met her in the College. Kalpana
had told Sushma that her husband (Prabhu) was not smart
and was not earning anything and further suggested
Sushma to accompany her to their home town in Uttar
Pradesh, where she had selected one youth serving in Air
Force and that the Sushma should marry him. It appears
that the Sushma had refused for that proposal and at
that time the Sushma was pregnant. Even the Accused
No.1 Dilip had also met Sushma once and had asked her to
leave the house of her husband and stay with Tiwari
family. Dilip had also threatened to kill her and the
Nochil family (Prabhu’s family), whereupon, the Sushma
had suggested Prabhu to lodge a complaint in the Police
Station about all such threats, but the Prabhu had
suggested Sushma that Dilip and others are her relatives
and everything will be alright by the passage of time.
Thereafter, due to threats from the Accused Dilip,
Sushma had suggested Prabhu that they should go to their
home town in Kerala, however, Prabhu suggested to stay
in the house of his relative at Andheri and accordingly
Sushma was shifted to the house of Shashindran (relative
of prabhu - husband of Prabhu’s mother’s sister).
Shashindran and Balan reside adjacent to each other at
Andheri, and Prabhu’s mother Indira and the wives of
Shashindran & Balan are the real sisters, and Bijit was
( 6 )
son of Balan.
5. On the night between 16th to 17th May, 2004 it is
the case of the prosecution that the deceased Krishnan
Nochil (father of deceased Prabhu), deceased Prabhu,
deceased Bijit, witness Deepa (Prabu’s sister) and
Indira (Prabhu’s mother) were sleeping in their house at
Khairpada Waliv. At about 1.15 a.m. someone knocked
the back side door of their house and when deceased
Krishnan Nochil opened the door, Accused Dilip, Manoj,
Sunil and one more person entered the house. Dilip and
Manoj assualted Krishnan with knife over the chest,
stomach, and when the Prabhu rushed to save his father
Krishnan, Accused Dilip & Majoj also inflicted blows on
Prabhu with knife over his stomach and chest. Dilip
thereafter had asked accused Sunil and the unknown
person to take Prabhu out of the house and kill him, and
when Deepa started proceeding ahead to save her brother,
Accused Dilip & Manoj armed with knife rushed towards
her. At that time Bijit came there and he caught hold
of Accused Manoj and urged him not to assault. On that
accused Manoj inflicted blows with knife over the hand,
chest, cheek of Bijit as a result of which Bijit fell
down. As per the prosecution’s case, the accused Dilip
& Manoj thereafter came near Deepa and inflicted blows
with knife over her face and body, and when Deepa fell
down, accused Dilip & Manoj thereafter assaulted Indira
(Prabhu’s mother) with knife. At that time, accusd
( 7 )
Sunil who had taken out Prabhu, came back in that room
and inflicted knife blows over the neck of Abhayraj @
Bachhu. Abhayraj immediately ran outside the house
whereupon Accused Sunil chased him armed with the knife.
Accused Dilip & Manoj therefter left the house and while
leaving accused Manoj had dropped the knife in that
room. It is the case of the prosecution that about 10
to 15 minutes thereafter, Deepa contacted Balan on phone
and informed him the incident that accused Dilip, Manoj,
Sunil and one more person had assaulted with knife to
the family members. At the same time Indira (mother of
Prabhu) went towards the front door. She opened the
door and shouted "Bachav Bachav", but nobody came to
their rescue. Prabhu who was lying in the injured
condition in front of the said door was calling Indira
as "Mammi Mammi". It is the case of the prosecution
that the Head Constable Shri.Bhosale who was on
bandobast duty at check post of Sativali Khind rushed to
the spot upon being informed, and he also sent message
to Manikpur Police Station to sent one Mobile Van. He
saw Prabhu lying injured in front of door on the road,
Indira lying injured near him, and also saw dead bodies
of Bijit and Krishnan inside the house and Deepa lying
injured. Shri.Bhosale then brought one tempo and sent
injured Deepa, Indira and Prabhu to P.H.C.Navghar. At
that time Prabhu’s relatives Shashindran, Balan and his
wife who had reached the spot of incident at Khairpada
Waliv they also noticed that Krishnan and Bijit were
( 8 )
dead. They also learnt that the injured were taken to
Government Dispensary at Navghar. Shashindran and Balan
then went to Navghar, and thereafter all the injured
persons were taken to Bhagvati Hospital as they were
very serious. Deepa and Indira were not in a condition
to speak, however, Prabhu had disclosed to Shashindran
that Sushma’s brother Dilip, Manoj, Sunil and one more
person had inflicted knife blows over the family members
including him. As per the prosecution’s case Prabhu
succumbed to the injuries in the Bhagvati Hospital. As
per the case of the prosecution, at about 5.00 a.m.
Balan (relative of Prabhu) came to the Police Station
and lodged a complaint about this incident.
Accordingly, C.R.No.I-144/04 was registered at about
5.30 a.m. for the offences punishable under Sections
302, 307, 452, 34 of the Indian Penal Code. Thereafter
the P.S.I. Shri.Barve had prepared the inquest
panchanama of the dead bodies of Krishnan and Bijit at
6.00 a.m., he had also prepared the inquest panchanama
of the dead body of Abhayraj who was lying near the
K.T.Maidan and thereafter all the three dead bodies were
sent to postmortem examination. Thereafter the
investigating Officer had prepared the spot panchanama
in presence of the panchas and seized one blood stained
handkerchif, one blood-stained iron knife and also
collected the sample of blood stains lying on the floor
with the help of cotton swab.
( 9 )
6. On 18.5.200 PSI Shri.Barve recorded the statement of
injured Deepa at the Bhagwati Hospital, and on 27.5.2004
statement of Sushma came to be recorded. Thereafter,
Accused Dilip was arrested on 29.5.2004 from Uttar
Pradesh, and his statement came to be recorded under
panchanama. Thereafter one knife, pant and shirt having
blood stains were recovered at the instance of accused
Dilip. Statement of injured Indira was recorded on
2.6.2004 in the hospital. Assused Sunil was arrested on
2.6.2004 and as per his disclosure statement made on
5.6.2004 memorandum panchanama was prepared and one
knife and blood stained clothes were seized under
panchanama at his instance. Accused Manoj was arrested
on 22.6.2004. Accused Premnarayan (father of Dilip) and
Tulsidevi were arrested on 25.6.2004, and thus after
completion of investigation, the chargesheet was filed
in the Court of J.M.F.C. at Vasai for the offences
punishable under Sections 302, 307, 452, 34 and 120-B of
the Indian Penal Code, and said offences u/s.302, 307 of
the I.P.C. being triable exclusively by the Court of
Sessions, the case was committed to the Sessions Court
for further trial. It is the case of the prosecution
that all the accused pleaded not guilty to the charge
and claimed trial. All the accused had taken a defence
that they have been falsely implicated in this case.
The prosecution has examined 14 witnesses, while Accused
Sunil has examined 2 defence witnesses.
( 10 )
7. Mr.Borulkar, the learned Public Prosecutor for the
State argued for confirmation of death penalty on all
the three accused. Mr.Borulkar, the learned Public
Prosecutor, at the outset, very fairly submitted that
there were two mitigating circumstances, namely age of
the accused, and no criminal antecedents. However,
Mr.Borulkar pointed out that the age of the accused is
not a mitigating circumstance as has been held by the
Supreme Court. Mr.Borulkar, pointed out the following
aggravating circumstances, justifying imposition of
death penalty on the accused persons:-
(a) Helpless victims
(b) Victims totally unarmed
(c) Victims woken up from sleep at midnight
(d) Manner of inflicting injuries, 20-30 serious
injuries on each of the deceased, whereas even a
single injury would have been sufficient to kill,
shows the barbarous attitude.
(e) Attacking ruthlessly six persons, Deepa & Indira
were let off presumed to be dead, seeking to wipe off
the entire family.
(f) Attacked on every vital organ.
( 11 )
(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 midnight 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 17.5.2004, i.e.after a lapse of seven months.
As Dilip was totally opposed to the marriage, the
above attack was highly pre-meditated and not at the
heat of the moment.
8. The learned Public Prosecutor referred to the
following judgments of the Supreme Court and our Court,
dealing with the principles regarding the imposition of
death penalty:-
Dhananjoy Chatterjee Alias Dhana V/s.State of W.B.- 1994
SCC (Cri) 358, wherein the observations in Paragraph
Nos.13 to 16 are relevant, which read as under:-
"13. We have given our anxious consideration to the
question of sentence keeping in view the changed
legislative policy which is patent from section
354(3) CrP.C. We have also considered the
( 12 )
observations of this Court in Bachan Singh case-
Bachan Singh V/s.State of Punjab - (1980) 2 SCC 684:
1980 SCC (Cri) 580."
"14. In recent years, the rising crime rate -
particularly violent crime against women has made the
criminal sentencing by the courts a subject of
concern. Today there are admitted disparities. Some
criminals get very harsh sentences while many receive
grossly different sentence for an essentially
equivalent crime and a shockingly large number even
go unpunished thereby encouraging the criminal and in
the ultimate making justice suffer by weakening the
system’s credibility. Of course, it is not possible
to lay down any cut and dry formula relating to
imposition of sentence but the object of sentencing
should be to see that the crime, does not go
unpunished and the victim of crime as also the
society has the satisfaction that justice has been
done to it. In imposing sentences in the absence of
specific legislation, Judges must consider variety of
factors and after considering all those factors and
taking an overall view of the situation, impose
sentence which they consider to be an appropriate
one. Aggravating factors cannot be ignored and
similarly mitigating circumstances have also to be
taken into consideration."
"15. In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the
crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in
which the courts respond to the society’s cry for
justice against the criminals. Justice demands that
courts should impose punishment befitting the crime
so that the courts reflect public abhorrence of the
crime. The courts must not only keep in view the
rights of the criminal but also the rights of the
victim of crime and the society at large while
considering imposition of appropriate punishment."
"16. The sordid episode of the security guard, whose
sacred duty was to ensure the protection and welfare
of the inhabitants of the flats in the apartment,
should have subjected the deceased, a resident of one
of the flats, to gratify his lust and murder her in
retaliation for his transfer on her complaint, makes
the crime even more heinous. Keeping in view the
medical evidence and the state in which the body of
the deceased was found, it is obvious that a most
heinous typy of barbaric rape and murder was
committed on a helpless and defenceless school-going
girl of 18 years. If the security guards behave in
this manner who will guard the guards? The faith of
( 13 )
the society by such a barbaric act of the guard, gets
totally shaken and its cry for justice becomes loud
and clear. The offence was not only inhuman and
barbaric but it was a totally ruthless crime of rape
followed by cold blooded murder and an affront to the
human dignity of the society. The savage nature of
the crime has shocked our our judicial conscience.
There are no extenuating or mitigating circumstances
whatsoever in the case. We agree that a real and
abiding concern for the dignity of human life is
required to be kept in mind by the courts whiile
considering the confirmation of the sentence of death
but a cold blooded preplanned brutal murder, without
any provocation, after committing rape on an innocent
and defenceless young girl of 18 years, by the secury
guard certainly makes this case a "rarest of rare"
cases which calls for no punishment other than the
capital punishment and we acordingly confirm the
sentence of death imposed upon the appellant for the
offence under section 302 IPC. The order of sentence
imposed on the appellant by the courts below for
offences under Sections 376 and 380 IPC are also
confirmed along with the directions relating thereto
as in the event of the execution of the appellant,
those sentences would only remain of academic
interest. This appeal fails and is hereby
dismissed."
Ronny alias Ronald James Alwaris and Others V/s.State of
Maharashtra - (1998) 3 SCC 625, wherein paragraph No.47
reads as under:-
"47. Considering the cumulative effect of all the
factors, it cannot be said that the offences were
committed under the influence of extreme mental or
emotional disturbance for the whole thing was done in
a pre-planned way; having regard to the nature of
offences and circumstanes in which they were
committeed, it is not possible for the Court to
predict that the appellant would not commit criminal
act of violence or would not be a threat to the
society. A-1 is 35 years’ old, A-2 is 35 years’ old
and A-3 is 25 (sic 27) years’ old. The appellants
cannot be said to be too young or too old. The
possibility of reform and rehabilitation, however,
cannot be ruled out. From the facts and
circumstances, it is not possible to predict as to
who among the three played which part. It may be
that the role of one has been more culpable in degree
than that of the others and vice versa. Where in a
( 14 )
case like this it is not possible to say as to whose
case falls within the "rarest of the rare" cases, it
would serve the ends of justice if the capital
punishment is awarded by the courts below under
Sectin 302 read with Section 34 from death to life
imprisonment. The sentences for the offences for
which the appellants are convicted, except under
Section 376(2) (g) IPC, shall run concurrently; they
shall serve sentence under section 376(2)(g) IPC
consecutively, after serving sentence for the other
offences."
Ediga Anamma V/s.State of Andhra Pradesh - AIR 1974
Supreme Court 799, wherein the relevant paragraph No.26
reads as under:-
"26. Let us crystalise the positive indicators
against death sentence under Indian Law currently.
Where the murderer is too young or too old, the
clemency of penal justice helps him. Where the
offender suffers from socio-economic, psychic or
penal compulsions insufficient to attract a legal
exception or to downgrade the crime into a lesser
one, judicial commutation is permissible. Other
general social pressures, warranting judicial notice,
with an extenuating impact may, in special cases,
induce the lesser penalty. Extraordinary features in
the judicial process such as that the death sentence
has hung over the head of the culprit excruciatingly
long, may persuade the Court to be compassionate.
Likewise, if others involved in the crime and
similarly situated have received the benefit of life
imprisonment or if the offence is only constructive,
being under Section 302 read with section 149, or
again the accused has acted suddenly under another’s
instigation, without premeditation, perhaps the court
may humanely opt for life, even like where a just
cause or real suspicion of wifely infidelity pushed
the criminal into the crime. On the other hand, the
weapons used and the manner of their use, the
horrendous features of the crime and hapless,
helpless state of the victim and the like, steel the
heart of the law for a sterner sentence. We cannot
obviously feed into a judicial computer all such
situations since they are astrological imponderables
in an imperfect and undulating society. A legal
policy on life or death cannot be left for ad hoc
mood or individual predilection and so we have sought
to objectify to the extent possible, abandoning
retributive ruthlessness, amending the deterrent
( 15 )
creed and accepting the trend against the extreme and
irrevocable penalty of putting out life."
State of U.P.V/s.Dharmendra Singh and Another - (1999) 8
SCC 325, wherein, Paragraph No.22 of the judgment reads
as under:-
"22. The prosecution in this case, as accepted by
the two courts below, has established the fact that
Dharmendra nursed a grudge against the complainant
for having purchased the family property including
the residential part against his desire to own the
same. The prosecution has also established that
Narendra, though an educated person who at the time
of the incident, was pursuing his LLB Course had
been entertaining a lust towards Reeta and in
furterance of this desire had been teasing her and
also a few days prior to the incident, had tried to
molest her consequent to which, upon a complaint
made by Reeta, the complainant and his nephew had
assaulted Narendra. This case of the prosecution
shows that these two persons in furtherance of their
diabolic motive conspired to teach a lesson to the
complainant by killing such of those members of the
family who were vulnerable and helpless. This is
clear from the timing of the attack which was when
other able members of the family were away from the
house and only the aged and the weak remained alone
in the house. Also the fact that they solicited the
help of four of their friends (other accused) shows
that the intention was to kill as many members of
the complainant family as possible, irrespective of
the fact whether the victims were the cause of their
vengeance or not. The ghastly manner of attack on
the deceased, which is evident from the post mortem
report shows that the act in question was
premeditated, senseless, dastardly and beyond all
human reasoning inasmuch as 53 wounds were inflicted
on the 5 deceased persons; each one suffering at
least 10 wounds on an average. The ataacks were
aimed at such parts of the body in succession where
even a single stab would have, in the ordinary
course, sufficed to cause death. The denuding of
the lower part of the body of Reeta showed an
element of perversity which could be attributed to
the mind of frustrated men who totally lacked human
sensitivity. A holistic examination of the material
on record shows that the barbaric offence in
question could only be termed as a ‘rarest of the
rare’ case."
( 16 )
Lehna V/s.State of Haryana - (2002) 3 SCC 76, wherein,
the observations of the Supreme Court in paragraph No.20
to 23 are relevant, which read as under:-
"20. In Machhi Singh - 1983 (3) SCC 470 and Bachan
Singh - 1980 (2) SCC 684 cases the guidelines which
are to be kept in view when considering the question
whether the case belongs to the rarest of the rare
category were indicated."
"21. In Machhi Singh case it was observed: (SCC
p.489, para 39) -
The following questions may be asked and answered as
a test to determine the ‘rarest of the rare’ case in
which death sentence can be inflicted:
a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
b) Are the circumstances of the crime such that
there is no alternative but to impose death
sentence even after according maximum weightage
to the mitigating circumstances which speak in
favour of the offender? "
"22. The following guidelines which emerge from
Bachan Singh case will have to be applied to the
facts of each individual case where the question of
imposition of death sentence arises : (SCC p.489,
para 38)
(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the
circumstancs of the ‘offender’ also require to
be taken into consideration alongwith the
circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death
sentence is an exception. Death sentence must
be imposed only when life imprisonment appears
to be an altogether inadequate punishment having
regard to the relevant circumstances of the
crime, and provided, and only provided, the
option to impose sentence of imprisonment for
life cannot be conscientiously exercised having
regard to the nature and circumstances of the
crime and all the relevant circumstances.
( 17 )
(iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up and
in doing so the mitigating circumstances has to
be accorded full weightage and a just balance
has to be struck between the aggravating and the
mitigating circumstances before the option is
exercised."
"23. In rarest of rare cases when the collective
conscience of the community is so shocked, that it
will expect the holders of the judicial power centre
to inflict death penalty irrespective of their
personal opinion as regards desirability or
otherwise of retaining death penalty, death sentence
can be awarded. The community may entertain such
sentiment in the following circumstances:
(1) When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and
extreme indignation of the community.
(2) When the murder is committed for a motive
which evinces total depravity and meanness;
e.g.murder by hired assassin for money or reward;
or cold-blooded murder for gains of a person
vis-a-vis whom the murderer is in a dominating
position or in a position of trust; or murder is
committed in the course for betrayal of the
motherland.
(3) When murder of a member of a Scheduled Caste
or minority community etc., is committed not for
personal reasons but in circumstances which
arouse social wrath, or in cases of ‘bride
burning’ or ‘dowry deaths’ or when murder is
committed in order to remarry for the sake of
extracting dowry once again or to marry another
woman on account of infatuation.
(4) When the crime is enormous in proportion.
For instance when multiple murders, say of all or
almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.
(5) When the victim of murder is an innocent
child, or a helpless woman or old or infirm
person or a person vis-a-vis whom the murderer is
in a dominating position, or a public figure
generally loved and respected by the community.
9. Mr.Borulkar thereafter referred to and relied upon
( 18 )
the Division Bench judgment of this Court in the case of
The State of Maharashtra V/s. Assis Domnic Warawale &
Anr.- Confirmatin Case No.5 of 2005 in Sessions Case
No.112 of 2004 dated 9th August, 2006, and the relevant
paragraph Nos.155 & 156 of the said judgment read as
under:
"155. The age of the accused becomes irrelevant in the
context of this case, because they had entered a
conspiracy. It was not that the offence was committed
by them at the spur of the moment. Two murders
committed by them in sequence to achieve their
objective i.e. to rob old lady of her valuables do
reveal that the act of the accused is a menace to the
society and so called argument about reformation is
only to gain sympathy of the court and nothing more.
Therefore, in the circumstances, viz. the accused
belonging to the middle class respectable families and
lack of any criminal record against them are not at all
mitigating circumstances."
"156. Mr.Memon tried to contend that it is not certain
as to who out of the two accused hanged the child.
This arguament is totally futile because these accused
i.e. accused Nos.1 and 2 had entered the bedroom and
the manner in which that diabolic act of hanging the
child was executed, clearly shows that more than one
person was required to participate in hanging the child
to the ceiling fan with the help of telephone cord.
Mr.Menon also tried to contend that even the evidence
of P.W.18 Gienda Lobo, shows that actual blows upon
Leticia were inflicated by two juvenile boys and none
of these accused had any role to play. We are not at
all in agreement with this argument when all of them
entered the house with common intention to rob and in
sequence thereof Leticia was murdered and the child was
killed, these accused i.e.accused Nos.1 and 2 must be
held to share the common intention in doing this entire
act i.e. robbery and murders of Leticia and infant
child Mast.Dylon Lobo. Therefore considering the
mitigating and aggravating circumstances, we hold that
there are absolutely no circumstances to justify
imposition of sentence lesser than the death sentence."
10. Mr.Borulkar, the learned Public Prosecutor
thereafter referred to and relied upon the Supreme Court
( 19 )
Judgment in the case of Shivu and Another V/s.Registrar
General, High Court of Karnataka and Another - (2007) 4
SCC 713, and the relevant paragraph Nos.22 and 23 of the
said judgment read as under:-
"22. In Machhi Singh - 1983 (3) SCC 470 case it was
observed: (SCC pp.471-72)
The following questions may be asked and answered as
a test to determine the ‘rarest of the rare’ case in
which death sentence can be inflicted:
a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
b) Are the circumstances of the crime such that
there is no alternative but to impose death
sentence even after according maximum weightage
to the mitigating circumstances which speak in
favour of the offender? "
. The following guidelines which emerge from Bachan
Singh - 1980 (2) SCC 684 case will have to be
applied to the facts of each individual case where
the question of imposition of death sentence arises
: (SCC p.489, para 38)
(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the
circumstancs of the ‘offender’ also require to
be taken into consideration alongwith the
circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death
sentence is an exception. Death sentence must
be imposed only when life imprisonment appears
to be an altogether inadequate punishment having
regard to the relevant circumstances of the
crime, and provided, and only provided, the
option to impose sentence of imprisonment for
life cannot be conscientiously exercised having
regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up and
( 20 )
in doing so the mitigating circumstances have to
be accorded full weightage and a just balance
has to be struck between the aggravating and the
mitigating circumstances before the option is
exercised.
. In rarest of rare cases when collective
conscience of the community is so shocked, that it
will expect the holders of the judicial power centre
to inflict death penalty irrespective of their
personal opinion as regards desirability or
otherwise of retaining death penalty, death sentence
can be awarded. The community may entertain such
sentiment in the following circumstances:
(1) When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and
extreme indignation of the community.
(2) When the murder is committed for a motive
which evinces total depravity and meanness;
e.g.murder by hired assassin for money or reward;
or cold-blooded murder for gains of a person
vis-a-vis whom the murderer is in a dominating
position or in a position of trust; or murder is
committed in the course for betrayal of the
motherland.
(3) When murder of a member of a Scheduled Caste
or minority community etc., is committed not for
personal reasons but in circumstances which arouse
social wrath, or in cases of ‘bride burning’ or
‘dowry deaths’ or when murder is committed in
order to remarry for the sake of extracting dowry
once again or to marry another woman on account of
infatuation.
(4) When the crime is enormous in proportion. For
instance when multiple murders, say of all or
almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.
(5) When the victim of murder is an innocent
child, or a helpless woman or old or infirm person
or a person vis-a-vis whom the murderer is in a
dominating position, or a public figure generally
loved and respected by the community.
. If upon taking an overall global view of all the
circumstances in the light of the aforesaid
propositions and taking into account the answers to
the questions posed by way of the test for the rarest
of rare case, the circumstances of the case are such
( 21 )
that death sentence is warranted, the court would
proceed to do so."
"23. A convict hovers between life and death when
the question of gravity of the offence and award of
adequate sentence comes up for consideration.
Mankind has shifted from the state of nature towards
a civilised society and it is no longer the physical
opinion of the majority that takes away the liberty
of a citizen by convicting him and making him suffer
a sentence of imprisonment. Award of punishment
following conviction at a trial in a system wedded to
the rule of law is the outcome of cool deliberation
in the courtroom after adequate hearing is afforded
to the parties, accusations are brought against the
accused, the prosecuted is given an opportunity of
meeting the accusations by establishing his
innocence. It is the outcome of cool deliberations
and the screening of the material by the informed man
i.e. the Judge that leads to determination of the
lis."
11. Applying the above principles, Mr.Borulkar
contended that the above case clearly come within the
purview of "rare and rarest case" entailing death
penalty.
12. Mr.Ramakant Patil, the learned Counsel appearing on
behalf of Dilip Tiwari, the original Accused No.1, made
the following submissions, challenging the said
conviction and sentence:-
a) Mr.Ramakant Patil has submitted that so for as the
Accused No.1 - Dilip Tiwari is concerned, there are no
criminal antecedents against him. The learned Counsel
Mr.Ramakant Patil has further submitted that the
Accused No.1 had not even completed 25 years of age at
the time when the offence was committed, and that he
( 22 )
is an unmarried person, and this is not a rare and
rarest case, hence death penalty ought not to be
confirmed.
b) The learned Counsel for Accused No.1 has further
submitted that so far as FIR is concerned, there was
two hours delay in lodging the FIR. According to him,
the information was received by the police especially
Police Head Constable Shashikant Bhosale at 3.30
a.m.and the FIR was lodged at 5.30 a.m., and as such,
the FIR is nothing but a concocted story. Mr.Ramakant
Patil has submitted that the Balan was not an eye
witness of the offence, but he visited the scene of
offence later on. According to him, the said Balan
with collusion of Shashindran and P.S.I.Mr.Barve have
concocted the FIR.
c) According to Mr.Ramakant Patil, the Balan’s
statement should have been treated as a statement
under Section 161 of the Code of Criminal Procedure
Code and not as an FIR.
d) The learned Counsel Mr.Ramakant Patil has further
submitted that so far as P.W.No.10-Shashikant Bhosale,
Police Head Constable is concerned, he was a material
witness who had actually received the first
information of the incident while on duty at Check
Post at Sativli Khind, and therefore, P.S.I.Mr.Barve
( 23 )
should have recorded the Bhosale’s statement as FIR.
Mr.Patil has vehemently submitted that the delay in
lodging the FIR was not explained satisfactorily.
e) The learned Counsel Mr.Ramakant Patil has contended
that the body of Abhayraj was found three hundred feet
away from the house and as such he was not part of the
sequence of events. According to the learned Counsel
there was no overt act by Dilip against Abhayraj.
f) Mr.Ramakant Patil has further submitted that
deceased Prabhu’s body was found outside the house,
and as such, the unknown persons could have caused
fatal injury on Prabhu outside the house and therefore
the Accused persons should not be held responsible for
his murder.
g) Mr.Ramakant Patil submitted that the buffaloes of
Krishnan must have damaged some fields, hence some
unknown persons must have attacked Krishnan, Prabhu
etc.
. Under the aforesaid facts and circumstances,
Mr.Ramakant Patil, the learned Counsel for accused Dilip
Tiwari prays for his acquittal.
13. Mr.Sandesh Patil, the learned Counsel appearing on
behalf of Manoj Paswan, original Accused No.3 challenges
( 24 )
the conviction and sentence on the following grounds.
a) According to Mr.Sandesh Patil, the acquittal of
Accused Nos.4 & 5 raises doubt about the entire case,
especially the conviction of original Accused No.3 -
Manoj Paswan. He has submitted that what is needed in
this case is a very careful examination of the
evidence of the case. Attacking the issue of FIR,
Mr.Sandesh Patil has stated that the FIR was lodged
belatedly and therefore such a delayed FIR is not
believable. He has raised the question as to which is
the actual FIR, and as to who was the actual
informant. According to him the entire evidence in
this case is contrary to the FIR. He has further
submitted that the FIR is hit by Section 161 of the
Code of Criminal Procedure, and there is a deliberate
suppression of real informant of the offence. So far
as Accused Manoj is concerned, the learned Counsel
Mr.Sandesh Patil has vehemently submitted that no
identification parade was conducted for the said
accused. The learned Counsel has further submitted
that there is material contradiction in the evidence
of two eye witnesses and there are several omissions
in their police statements. According to him even the
medical evidence does not corroborate the evidence of
other witnesses, and that the same panch witness was
used for four different panchanamas.
( 25 )
b) The learned Counsel Mr.Sandesh Patil has further
submitted that so far as P.W.No.2 -Shashindran is
concerned, there are various improvements,
contradictions and omissions in his deposition, as
recorded in paragraph No.17. According to him the
evidence deposed by P.W.No.2-Shashindran is not at all
reliable, and the benefit of doubt should be given to
the Accused Manoj Paswan in this case. The learned
Counsel pointed out that the P.W.No.2 in his cross
examination has deposed that he had not stated before
the police that Sushma’s brother Dilip, Manoj, Sunil
and one more person inflicted blows with knife, but he
had just stated that the Accused persons had inflicted
blows over the family members of Prabhu. That is to
say there is an improvement of "knife". The learned
Counsel further pointed out that the P.W.No.2 has also
denied of having stated before the police that Prabhu
had told him that Manoj and Sunil were Dilip’s friend.
c) Assailing on the evidence of P.W.No.4- Deepa, the
learned Counsel Mr.Sandesh Patil has vehemently
submitted that her evidence is totally unreliable.
According to him, if Deepa was conscious from the time
of incident till going to Bhagwati Hospital, then she
could have lodged a complaint. According to the
learned Counsel it was stated by P.W.No.4 - Deepa that
there were various injuries on different parts of her
body, however her blood-stained clothes were never
( 26 )
seized. The learned Counsel has further submitted
that though Deepa had stated that she herself as well
as Bijit were sleeping in the house, however, witness
Indira does not name Bijit. According to him though
Deepa stated Manoj had inflicted blows over Bijit,
witness Indira however does not mention name of Bijit.
The learned Counsel Mr.Sandesh Patil has strongly
contended that the time as to when witness Deepa
became unconscious is a very crucial point. According
to him if Deepa herself had stated that she regained
consciousness on next day, then her deposition about
narrating the incident to Balan appears to be doubtful
and unreliable. According to him the time as to when
she was unconscious is not clear. The learned Counsel
has further submitted that if there were stitches on
Deepa’s lips, then her deposition that her statement
was recorded by the police appears to be doubtful.
The learned Counsel further submitted that Deepa does
not say in police statement that Manoj and Sunil were
Dilip’s friends. According to him, there was delay in
recording Deepa’s statement and that whether she could
talk or not is also doubtful. The learned Counsel has
stated that Deep’s evidence was unreliable and was not
trustworthy.
d). Mr.Sandesh Patil, the learned Counsel for the
original Accused No.3 - Manoj Paswan thereafter took
us through the evidence deposed by P.W.No.8-Indira and
( 27 )
has submitted that in Indira’s deposition also there
are various contradictions and improvements. The
learned Counsel has submitted that in the evidence of
Indira there was no mention of Bijit being there, and
that she no where says that Deepa had telephoned
Balan. According to him, there is no reference of
knives in her statement and therefore there is
material improvement with regrd to knives.
e) Mr.Sandesh Patil, the learned Counsel appearing on
bahalf of original Accused No.3- Manoj Paswan has
further submitted that there is no case motive
involved. According to him, there was no positive and
clear evidence as to the motive behind the offence,
and that the accused was falsely implicated in the
case. According to him the person who actually
informed the incident to Police Head Constable Bhosale
was not examined. Even his identity was not disclosed
and his statement was not recorded, and therefore the
case appears to be entirely concocted by the
prosecution.
f) The learned Counsel further sought to point out the
contradictions and omissions in the evidence of Deepa.
In her cross-examination, in paragraph No.29, the
witness Deepa has specifically admitted that she had
not stated in her statement before the Police that all
the four accused persons were armed with knives. As
( 28 )
stated in the said paragraph No.29, she has also
admitted that she had not stated before the Police
that the age of Bijit was 13 years. Even the
description of knife was not stated before the Police.
According to the learned Counsel the deposition of
witness Deepa in paragraph No.34 that she had stated
before the police that she knew Accused Sunil and
Manoj as Dilip’s friends, is an improvement.
g) The learned Counsel Mr.Sandesh Patil has thereafter
submitted that no arrest panchnama was drawn so far as
accused Manoj Paswan was concerned. According to the
learned Counsel the Accused Manoj’s clothes were not
sent to Chemical Analyser though panchanama was drawn,
and even there was no report of the Chemical Analyser
with regard to the knife. According to him the
panchanama of the clothes was also not produced.
. Under the aforesaid facts and circumstances,
Mr.Sandesh Patil prays for acquittal of the accused
Manoj Paswan.
14. Mr.Raj, the learned Counsel appearing on behalf of
Sunil Yadav, original Accused No.2 challenges the
conviction and sentence as under:-
a) Mr.Raj, the learned Counsel for accused Sunil Yadav
has submitted that the omission of the names Manoj
( 29 )
Paswan and Sunil Yadav by Balan in the FIR tantamounts
to contradiction. In support of his submissions, he
referred to the judgment of the Hon’ble Supreme Court in
the case of Juwarsingh s/o Bheraji & Others V/s.State of
M.P. - 1980 (Supp) SCC 417, wherein paragraph No.6
reads as under:-
"6. In regard to the seven persons whose names were
not mentioned in the first information report, PW 1
was unable to explain why she failed to mention their
names in the report. She frankly stated that she
cannot state the reason as to why their names were
not mentioned. We think that these seven persons are
entitled to the benefit of doubt and should be
acquitted."
15. Mr.Raj, the learned Counsel for Accused Sunil Yadav
also referred to and relied upon another judgment of the
Hon’ble Supreme Court in the case of A.R.Singh
V/s.Govt.of Manipur - (1976) 3 SCC 465, wherein the
observations of the Supreme Court in paragraph No.7 of
the judgment are relevant, which read as under:-
"7. It will be remembered that it was Dorendro Singh
who went to Ibotan Singh (PW 1) to inform him about
the incident. By tthat time, he knew the name of the
assailant. The Sessions Judge, cannot therefore be
said to be unreasonable in taking the view that if
the name of the appellant had really been disclosed
by Sanajoba Singh, and Dorendro Singh knew it, he
would have mentioned it to Ibotan Singh. Ibotan
singh himself reached the hospital as soon as he
learnt about the incident from Dorendro Singh, and we
have it from sanjoba Singh that Ibotan Singh and
others had come to him soon after, near the emergency
room. There could be no reason why Sanjoba Singh
would not have told Ibotan Singh about the name of
the person who had inflicted the fatal injuries on
the deceased, and the Sessions Judge cannot be said
to be unreasonable if he attached importance to the
( 30 )
fact that, even so, the name of the appellant was
significantly omitted from the first information
report which was lodged by Ibotan Singh soon after,
and, on the other hand, it was stated that the
offence had been committed by somebody and the
culprits may be arrested and dealt with."
16. Mr.Raj, the learned Counsel thereafter submitted
that the motive, which is an essential element in a
crime, was not established clearly against the Accused
Sunil Yadav. Referring to paragraph No.5 of the
examination in chief of Balan-PW No.1, the learned
Counsel Mr.Raj appearing for the accused Sunil Yadav has
sought to contend that Deepa who had informed Balan
about the incident on 17.5.2004 at about 1.15 a.m. on
phone had only stated that Sushma’s brother Dilip and
his three colleagues were inflicting blows with knife to
the family members, and she did not mention the names of
those three colleagues to Balan. Referring to the
deposition of P.W.No.2-Shashindran, especially paragraph
No.10, the learned Counsel Mr.Raj has sought to contend
that even Shashindran was not knowing accused Manoj &
Sunil personally, but Prabhu had told him in the
ambulance while going to the Bhagwati Hospital that they
were Dilip’s friends. Thereafter, the learned Counsel
took us through the deposition of P.W.No.13 - PSI
Mr.Barve, wherein in paragraph No.16 the said witness
has deposed that P.W.No.4 -Deepa had not stated before
him that she knew accused Sunil and Manoj as Dilip’s
friends, and that Deepa had not stated before him that
Accused Sunil and unknown person took Prabhu out of the
( 31 )
room and killed him. Mr.Raj, the learned Counsel for
accused Sunil Yadav has sought to submit that there was
no involvement of Sunil Yadav in the offence and his
name was not even mentioned by any of the members of
Nochil Family (Prabhu’s family).
17. In support of his submissions, Mr.Raj, the learned
Counsel for Accused Sunil Yadav thereafter referred to
and relied upon the judgment of the Hon’ble Supreme
Court in the case of Yudhistir V/s.State of M.P. -
(1971) 3 SCC 436, wherein, the relevant observations of
the Supreme Court in paragraph Nos.23, 24, 25 & 30, read
as under:-
"23. When confronted with these omissions in the
police statements, P.Ws.1 and 6 stated before the
Court that though they mentioned all the details
about the crime to the police, the latter has not
properly recorded their statements. But the
Investigating Officer, P.W.17 has given evidence to
the effect that he has recorded the staements of
P.Ws.1 and 6 as given by them and that they did not
mention anything about the part played by the
appellants in the crime."
"24. Mr.Shroff, learned Counsel for the State, has
attempted to explain away these circumstances on the
ground that they are only minor omissions which will
not affect the credibility of their evidence given
before the Court. We cannot accept this contention
of the learned Counsel. We are of the opinion that
these omissions, pointed out above, are not minor,
but they are omissions of a very substantial nature,
which affect the truth of the evidence given before
the Court. On the earliest occasion these witnesses
have omitted to refer to the decisive role stated to
have been played by the appellants in the commission
of murder. Therefore, the statement before the
Court implicating appellants must, in the
circumstances, be considered to be an improvement."
"25. In fact the learned Sessions Judge has also
( 32 )
held that the evidence of P.Ws.1 and 6 to the effect
that after coming out of the house of Bamdeo they
had told the people assembled outside that all the
four accused persons had killed Surajkunwar cannot
be believed. Similarly, the learned Sessions Judge
has also held that these two witnesses cannot be
believed on the point that along with Bamdeo the
appellants had also actively participated in causing
the death of Surajkunwar."
"30. The High Court further, without any reference
to these omissions and to the evidence given before
the Court holds "that P.Ws.1 and 6 must have seen
what transpired inside the room". Such a finding
recorded by the High Court without reference to the
various circumstanes, already adverted to by us,
cannot but be characterised as anything but a guess
work and cannot be treated as a finding arrived at
after a consideration of the evidence. On such
reasoning, as pointed out, the High Court has
confirmed the conviction of the appellants. The
approach made by the High Court is not at all
justified and as such the conclusios arrived at by
the High Court, as against the appellants, cannot be
sustained."
18. Mr.Raj, the learned Counsel appearing on behalf of
Accused Sunil Yadav has also referred to and relied upon
the judgment of Supreme Court in the case of State of
Rajasthan V/s.Rajendra Singh - (1998) SCC (Cri) 1605,
wherein the relevant observations of the Supreme Court
in paragraph No.7 are relevant, which read as under:-
"7. It was submitted by the learned Counsel for the
State that as many as six witnesses were found
injured and that would establish their presence at
the place of the incident. In our opinion, this
contention is of no help to the appellant because
their evidence has not been discarded on the ground
that they were not present. Their evidence was
discarded because they were found not telling the
truth before the Court. It was also submitted by the
learned Counsel that the evidence of PWs.1 to 4 stood
corroborated by two independent witnesses, namely
Ramjilal and Jeevan Singh. PW 8 Ramjilal had stated
that he had gone to the spot on hearing the sound of
( 33 )
a gunshot and tried to snatch away the gun from the
respondent. But he was contradicted by his police
statement wherein he had not stated anything
regarding snatching of the gun. This omission on
such a vital point has to be regarded as a
contradiction and it creates a serious doubt about
the truthfulness of his version. PW 9 Jeevan Singh
had stated that he had also rushed to the spot on
hearing the sould of a gunshot. He further stated
that he had made an attempt to save Harveer and in
doing so, he had received an injury. He had not so
stated before the police. This also shows that this
witness had made a material improvement before the
Court in order to make his evidence acceptable."
19. Over and above, the learned Counsel Mr.Raj sought
to contend that so far as Accused Sunil Yadav is
concerned, there is no overt act attributed to him
regarding the Nochil family. He even sought to contend
that Deepa’s evidence is not trustworthy. Referring to
the deposition of P.W.No.14 - Kiran Digambar Gosavi,
Additional S.P.State CID, Pune, (paragraph No.22), the
learned Counsel Mr.Raj appearing for accused Sunil Yadav
has sought to contend that, even the aforesaid witness
Gosavi has deposed that P.W.No.8 Indira had not stated
before him that accused Sunil Yadav was a friend of
Accused Dilip. According to him the motive behind the
crime was not established.
20. Referring to the statement of witness Deepa
recorded by the police, the learned Counsel Mr.Raj has
submitted that Deepa’s deposition is not credible at
all. The learned Counsel took us through the deposition
of P.W.No.2 - Shashindran (paragraph No.4), and sought
to contend that even in the deposition of aforesaid
( 34 )
witness Shashindran, there is no reference to the
‘knife’ being used in inflicting the blows. The learned
Counsel has pointed out that the aforesaid witness
Shashindran has stated that, Balan told him the
information as received from Deepa on telephone, that
Dilip, Manoj, Sunil and their associates had inflicted
blows over the family mebers. According to the learned
Counsel, there was no reference of infliction of ‘knife
blows’ by Deepa in her information on telephone to
Balan. Thus, according to him, omission of ‘knife’ is a
favourable aspect to the Accused. Referring to
paragraph No.10 of deposition of Shashindran in
paragraph Nos.17 & 18 the learned Counsel Mr.Raj has
contended that there are various serious contradictions
and improvements about ‘knife-blows’ as well as ‘Dilip’s
friends’, and as such, the deposition of Shashindran is
also unreliable.
21. The learned Counsel thereafter took us through the
deposition of P.W.No.3-Sushma, in paragraph No.13. The
learned Counsel has submitted that, though the aforesaid
witness Sushma in her deposition had stated that it was
disclosed to her by Balan (in the house of Shashindran)
that Balan received a phone call from Deepa informing
that accused Dilip, Manoj, Sunil and one more person had
assaulted Deepa and her family members with knife, in
the FIR however the Balan does not say about disclosing
details of Deepa’s conversation to them. In FIR, Balan
( 35 )
does not say about telling Sushma and Shashindran the
details of the incident. The learned Counsel further
submitted that in the Supplementary Statement recorded
on 17.5.2007 there is a clear improvement about this,
and therefore, its credibility is doubtful. According
to the learned Counsel, the Balan & Shashindran do not
even say in the police statement or in their evidence
that they had narrated the conversation of Deepa to
Sushma.
22. Thereafter, taking us through the evidence of
Indira-P.W.No.8, the learned Counsel Mr.Raj appearing on
behalf of Accused Sunil Yadav has submitted that
Indira’s evidence also cannot be relied upon. The
learned Counsel further states that Sushma in her
deposition recorded on 30.9.2005 (paragraph No.16) had
clearly deposed that her mother-in-law Indira had lost
her mental control and was under treatment of Dr.Paresh
Pai. Referring to section 118 of the Evidence Act,
Mr.Raj, the learned Cousnel has submitted that the Court
was duty bound to ascertain the mental stability of the
witness before deposing. According to him, neither the
prosecution, nor the defence or Court verified whether
she was competent to depose. The learned Counsel has
further stated that in her police statement and
deposition, there is no mention of Deepa’s conversation
to Balan. Referring to paragraph 10 of the deposition
of Indira, the learned Counsel Mr.Raj has submitted that
( 36 )
Indira does not mention about knocking of door and 4
persons entering the house. She has stated that when
she opened the door after hearing shouts she found her
husband had already fallen down due to injuries, and
Deepa had also fallen down due to injuries and that she
was not sure about Deepa’s physical condition and
consciousness. The learned Counsel Mr.Raj has
vehemently submitted the witness Indira has not stated
anything about Deepa’s telephone call to Balan.
According to the learned Counsel, Indira found Deepa
fallen down due to injuries and was unconscious at that
time, and if that be so, then, there was no possibility
of Deepa telephoning to Balan.
23. The learned Counsel Mr.Raj thereafter took us
through the evidence of Investigating Officer being the
P.W.No.14- Kiran Digambar Gosavi, Additional S.P., State
CID, Pune, (paragraph No.18). The learned Counsel has
submitted that the aforesaid Investigating Officer had
verified the statement of one Dipa Yashwant Kakad which
was recorded by PSI Mr.Barve, from which it was
transpired that injured Indira had knocked the door of
their house, and at that time, Indira was wearing maxi
and there was profuse blood over her person. The
learned Counsel has sought to contend that Dipa Yashwant
Kakad ought to have been examined but the prosecution
chose to examine only the interested witnesses and not
independent witness.
( 37 )
24. Referring to paragraph No.26 of the judgment and
the evidence of Investigating Officer P.W.No.14 in
paragraph No.22, the learned Counsel Mr.Raj has
submitted that there was improvement about ‘knife’, and
that there was contradiction and improvement on material
aspects. The learned Counsel has further submitted that
there was undue delay in recording the statement of
Indira under Section 161 of Cr.P.C. According to him
Indira’s statement was recorded by the police on
2.6.2004 and thus there was 16 days’ delay. Thereafter
referring to the Investigating Officer (P.W.No.14)
Mr.Gosavi’s deposition, paragraph No.22 on page 215, the
learned Counsel Mr.Raj has submitted that
P.W.No.8-Indira had not stated before Investigating
Officer that accused Sunil was the friend of accused
Dilip. The learned Counsel therefore submitted that
there were improvements and contraditions with regard to
the material aspects.
25. Referring to the deposition of Investigating
Officer in paragraph No.5, Mr.Raj, the learned Counsel
has pointed out that the police statement of witness
Indira was recorded belatedly on 2.6.2004. According to
him, though the I.O.has stated that earlier to 2.6.2004
witness Indira was not in a condition to give her
statement, everyday’s delay has not been properly
explained. The learned Counsel has further submitted
( 38 )
that there is no arrest panchanama in any of the case.
26. Thereafter the learned Counsel Mr.Raj referred to
the Rajendra’s evidence (brother of Sunil).
27. Referring to paragraph 24 of the deposition of
Mr.Gosavi, the Investigating Officer - P.W.No.14, the
learned Counsel Mr.Raj has submitted that the Test
Identification Parade was not conducted by the said
Investigating Officer.
28. In support of his submissions, Mr.Raj, the learned
Counsel has referred to and relied upon the Supreme
Court judgment in the case of Rambilas and Others V/s.
State of M.P. - 1997 SCC (Cri) 1222, wherein, the
observations of the Supreme Court in paragraph Nos.5 & 6
are relevant, which read as under:-
"5. We have very carefully gone through the judgments
of both the courts below and with respect we find that
notwithstanding the concurrent judgments thereof we are
unable to sustain the convictions of the appellants on
any count. It is well settled that this Court would be
slow to interfere with the findings of facts recorded
by the courts below which are based on appreciation of
evidence but we are of the considered view that the
Sessions Court as well as the High Court have
mechanically read the evidence of the eyewitnesses and
totally ignored the well-known principle of
appreciation of evidence. We have very carefully gone
through the evidence of PW 2, PW 3, PW 5 and PW 6 who
claimed to be the eyewitnesses. If we compare the
evidence of these eyewitnesses it is immediately
noticed that their evidence is just like a parrot
telling what is taught. Even the omissions,
contradictions and improvements are identical. The
claim of these eyewitnesses is totally unbelievable
( 39 )
when they testified that they had gone to the place of
occurrence. The distance between their houses and the
place of the occurrence is said to be one furlong. It
was night time and the only light available was that of
the moon. A festival "Ganga Dashara" was being
celebrated in the village and these witnesses claimed
that they heard the noise of Marpeet by sticks and,
therefore, they woke up. During the cromm-examination
they tried to explain by saying that they were not
fully asleep and, therefore, could hear the noise of
marpeet. They claimed that they had not consumed any
liquor. Their further claim was that when they went to
the place of the occurrence they all had earlier met at
a place which was in front of the house of Sukhnath (PW
5). The claim of Sukhnath was that he overheard the
talk between other eyewitnesses and, therefore, he came
out and went along with them to the place of the
occurence. The claim made by these eyewitnesses in
their examination in chief was that they had actually
seen the assault on Deosharan by the appellants but
during cross-examination they admitted that they did
not see the actual assault as they were prevented from
going to the place of the occurrence by the appellants.
The talk between the appellants and these four
eyewitnesses was again absolutely identical without
adding a word "less" or "more". In addition to the
above, the salient feature of their evidence is that
after some time, they again went to the place of the
occurrence but they could not see the appellants as
well as the dead body. They searched for the
appellants during the whole night. This claim of these
eyewitnesses is difficult to accept because according
to them, they had already been threatened by saying
that if they made any noise they would meet the same
fate like Deosharan. The assertion of these witnesses
that they had gone to the place of the occurrence
during that night appeared to us a cock and bull story.
Another circumstance that weighed with us is that
despite such a ghastly attack on Deosharan, none of
them ever thought of going to the father of Deosharan
to inform him about the incident. They also did not go
to the police station during the same night to lodge
the first information report. Furthermore, the story
of these eyewitnesses as regards the assault on
Deosharan is also not corroborated from the medical
evidence. Dr.S.S.Pankera (PW 4) had noticed three
external inuuries on the head and many small injuries
on the whole chest, backside and both feet, knees and
below the knees. Dr.S.S.Pankera further opined that
the dead body was mutilated and there was a fracture on
occipital portion and blood clot was present inside the
skull. One has only to test this evidence on the
touchstone of probability that when the five appellants
were simultaneously attacking Deosharan with the sticks
in their hands, of which the noise was heard from a
( 40 )
distance of one furlong, there ought to have been many
more injuries on the dead body of Deosharan. After
going throughthe evidence of these four star witnesses
who constituted the backbone of the prosecution story,
we are of the considered view that in all probabilities
it was a blind murder."
"6. It is no doubt true that there was no motive for
these eyewitnesses to implicate the appellants in the
present crime. That by itself would not lend any
foolproof assurance that their evidence is credible and
trustworthy. It has also come on the record that
because of the notorious character of Deosharan he had
many enemies in and around the village and if that be
so the probability of somebody else other than the
appellants being the assailant cannot be ruled out.
The courts below, in our opinion, had failed to read
the evidence of these eyewitnesses in a proper
perspective and had fallen into error in accepting
their evidence as credible and truthful."
29. Mr.Raj, the learned Counsel appearing on behalf of
Accused Sunil Yadav has submitted that absence of motive
to falsely implicate by itself will not mean witness is
truthful.
30. Mr.Raj, the learned Counsel has further submitted
that in the FIR, the Balan does not mention anything
about Abhayraj. Omission of "Abhayraj" in the FIR is a
favourable aspect to the Accused. Mr.Raj submitted that
the body of Abhayraj was found about three hundred feet
away from the house of Krishnan, makes it doubtful
whether the murder of Abhayraj took place within the
house of Krishnan. Mr.Raj also raised a doubt as to
when other neighbours did not wake up and came in,
whereas Abhayraj did so.
31. Mr.Raj, the learned Counsel thereafter referred to
the deposition of the Medical Officer Dr.Ashok
( 41 )
Pundlikrao Bhande being the P.W.No.6, who in paragraph
No.12, has stated that such injuries caused to Abhayraj
may be possible due to sword, sickle and knife. The
learned Counsel thereafter took us through the post
mortem report of Abhayraj, especially clause 17(3),
wherein the injuries are shown as under:-
"Incise wound over left side of neck toward ant side
of neck, size 21 cm X 5 cm X visera deep injury to
blood vessels, trachea oesophagus, food particles and
blood stained fluid oozing from wound"
32. The learned Counsel has submitted that to convict
an accused finger print exercise ought to have been
done, which has not been done in this case. Mr.Raj, the
learned Counsel for Sunil has submitted that the medical
evidence cannot corroborate, if evidence of both eye
witnesses is impeached.
33. Mr.Borulkar, the learned Public Prosecutor strongly
defends the conviction of the above three accused and
the imposition of death penalty on them with the
following submissions:-
(a) The evidence of eye witnesses Dipa and Indira who
were victims of serious injuries, is cogent,
convincing, truthful and natural.
(b) Both the eye witnesses have truthfully deposed to
whatever they had seen, and not artificially added
( 42 )
what they had not seen which they could have done, if
they were to be untruthful.
(c) Evidence of both the eye witnesses with regard to
injuries is clearly corroborated by the medical
evidence. The prosecution case is fully supported by
the dying declaration of Prabhu made to Shashindran.
(d) Reiterates the submissions made earlier with
regard to the imposition of death penalty.
34. After hearing all the learned Counsel in this
matter and after perusal of the evidence on record, the
following sequence of events is clear. Between 1.15 to
1.30 a.m. when Krishnan woke up after hearing the
knock, he turned on light and opened the back door, at
that time, prosecution witness Deepa also got up and
entered into that T.V.Room, and she saw all the three
accused persons viz.Dilip, Manoj and Sunil and another
unidentified person, all were armed with knives. Deepa
saw accused Dilip and Manoj inflicting stab injuries on
her father Krishnan’s stomach and chest. On seeing
this, Deepa screamed. Then, Prabhu entered the room and
tried to save his father Krishnan. Deepa saw accused
Manoj and Dilip stabbing Prabhu on his stomach and
chest. Deepa tried to save Prabhu. At that juncture,
accused Dilip told Sunil and other person to take Prabhu
outside and kill him. As Deepa was trying to save
( 43 )
Prabhu accused Dilip and Manoj rushed towards Deepa. In
the meanwhile, Bijit came into the room and tried to
restrain accused Manoj. Deepa states that accused Manoj
inflicted knife wounds over the stomach and chest of
Bijit, as a result of said wounds, Bijit fell to the
ground. Thereafter, accused Dilip and Manoj came
towards Deepa and inflicted kinfe blows on her stomach
and other parts of the body. Deepa shouted and fell to
the ground. Indira woke up and entered the room.
Accused Dilip and Manoj rushed towards Indira and
inflicted knife blows on her face and neck and both
sides of her stomach and over other parts of the body,
as a result Indira fell down. Thereafter immediately
accused Sunil entered the room and the Abhayraj followed
accused Sunil. Accused Sunil inflicted knife blows on
the neck of the Abhayraj as seen by both Deepa and
Indira. Abhayraj ran outside the room and accused Sunil
went chasing him armed with the knife. Accused Manoj at
this juncture dropped knife with which he had inflicted
wounds. Thereafter accused Manoj and Dilip left the
room. After a period of 15 minutes, Deepa somehow
crawled towards the telephone and narrated the incident
to Balan and she disconnected the call. After sometime,
Indira went screaming to the front door and after
opening the door she shouted Bachao, Bachao and the
Prabhu who was lying in front of the door was screaming
as Mummy, Mummy. Later on Deepa seems to have become
unconscious.
( 44 )
35. The Prosecution has examined two injured
eye-witnesses in the above case, with regard to the
aforesaid four murders, viz. PW-4 Deepa & PW-8 Indira.
Over and above, PW-1 viz.complainant Balan and the
brother-in-law PW-2 Shashindran have also narrated the
details as far as they knew. A clear analysis of the
evidence of aforesaid four witnesses viz. PW-4 Deepa,
PW-8 Indira, PW-1 Balan and PW-2 Shashindran shows the
same to be cogent, consistant, true and reliable. The
following comparison chart clearly establishes cogency,
consistency and truthfulness in the evidence of all the
aforesaid four witnesses.
-+---------------------------------------------------------------------------+
¦ COMPARISON CHART OF IMPORTANT WITNESSES ¦
¦ WITH REGARD TO THEIR EVIDENCE ¦
-¦---------------------------------------------------------------------------¦
¦ DIPA (PW4) ¦ INDIRA (PW8) ¦ BALAN (PW1) ¦ SASHINDRAN (PW2) ¦
¦ ¦ ¦ ¦ ¦
¦-----------------------¦---------------------------------------------------¦
¦ Between 1.15 am and ¦ ¦ ¦ ¦
¦ 1.30 am there was a ¦ ¦ ¦ ¦
¦ knock at the back door¦ ¦ ¦ ¦
-+-----------------------+---------------+---------------+-------------------+
¦ Krishnan (father woke ¦ ¦ ¦ ¦
¦ up and turned on the ¦ ¦ ¦ ¦
¦ light ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦¦ Krishnan opened door ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+------------------+¦
¦ Dipa came out into ¦ ¦ ¦ ++
¦ the TV Room ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Accused Dilip, Manoj ¦ ¦ ¦ ¦
¦ Sunil and another ¦ ¦ ¦ ¦
¦ unidentified person ¦ ¦ ¦ ¦
¦ entered the room armed¦ ¦ ¦ ¦
¦ with knives ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Dilip and Manoj ¦ ¦ ¦ ¦
¦ started stabbing ¦ ¦ ¦ ¦
( 45 )
¦ Krishnan in the ¦ ¦ ¦ ¦
¦ stomack and chest ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Dipa started screaming¦ ¦ ¦
-+-----------------------+---------------+---------------+-------------------+
¦ Prabhu came in room ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Prabhu intervened to ¦ ¦ ¦ ¦
¦ save Krishnan. Dilip ¦ ¦ ¦ ¦
¦ and Manoj stabbed him ¦ ¦ ¦ ¦
¦ too in the stomach and¦ ¦ ¦ ¦
¦ chest ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Deepa tried to save ¦ ¦ ¦ ¦
¦ Prabhu ¦ ¦ ¦ ¦
-+-------------------------------------------------------+-------------------+
¦ Dilip told Sunil and ¦ ¦ ¦ ¦
¦ the other person to ¦ ¦ ¦ ¦
¦ take Prabhu outside ¦ ¦ ¦ ¦
¦ and kill him ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Dilip and Manoj rushed¦ ¦ ¦ ¦
¦ towards Dipa ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Bijit came out of the ¦ ¦ ¦ ¦
¦ room and tried to ¦ ¦ ¦ ¦
¦ restrain Manoj ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Manoj inflicted knives¦ ¦ ¦ ¦
¦ over stomach and chest¦ ¦ ¦ ¦
¦ of Bijit ¦ ¦ ¦ ¦
¦+----------------------+---------------+---------------+-------------------+
-----------------------------------------------------------------------------
¦ Bijit sustained injury¦ ¦ ¦ ¦
¦ and fell on the ground¦ ¦ ¦ ¦
----------------------------------------------------------------------------+
¦ Dilip & Manoj came ¦ ¦ ¦ ¦
¦ towards Dipa inflicting ¦ ¦
¦ blows with knife on ¦ ¦ ¦ ¦
¦ stomach and other parts ¦ ¦ ¦
¦ of the body ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Dipa shouted and fell ¦ Indira woke up¦ ¦ ¦
¦ on the ground ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Indira (mother) came ¦ Indira came in¦ ¦ ¦
¦ the room ¦ the TV Room ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Dilip and Manoj rushed¦ Dilip & Manoj ¦ ¦ ¦
¦ towards her ¦ rushed towards¦ ¦ ¦
¦ ¦ her ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Dilip & Manoj ¦ Dilip & Manoj ¦ ¦ ¦
¦ inflicted blows on the¦ inflicted ¦ ¦ ¦
¦ face, neck, both side ¦ blows with a ¦ ¦ ¦
¦ of the stomach and ¦ knife on the ¦ ¦ ¦
¦ other parts of the ¦ neck, face & ¦ ¦ ¦
( 46 )
¦ body ¦ chest ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Indira fell ¦ Indira fell ¦ ¦ ¦
¦ ¦ down ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Sunil entered the room¦ Accused Sunil ¦ ¦ ¦
¦ ¦ came in the ¦ ¦ ¦
¦ ¦ room ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Abahyraj followed ¦ Abhayraj came ¦ ¦ ¦
¦ ¦ in running ¦ ¦ ¦
¦+----------------------+---------------+---------------+-------------------+
¦ Sunil inflicted blow ¦ Sunil cut the ¦ ¦
¦ with a knife on the ¦ neck of the ¦ ¦ ¦
¦ Abhayraj’s neck ¦ Abhayraj ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Abhayraj ran outside ¦ Abhayraj ran ¦ ¦
¦ the same door ¦ outside from ¦ ¦ ¦
¦ ¦ the back door ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Sunil chased Abhayraj ¦ Accused sunil ¦ ¦ ¦
¦ armed with knife ¦ chased ¦ ¦
¦ ¦ Abhayraj with ¦ ¦ ¦
¦ ¦ a knife ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Manoj dropped the ¦ ¦ ¦ ¦
¦ knife (feeling Dipa ¦ ¦ ¦ ¦
¦ may be unconscious) ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ Manoj & Dilip left ¦ Manoj & Dilip ¦ ¦ ¦
¦ ¦ left ¦ ¦ ¦
-----------------------------------------------------------------------------
+-----------------------+---------------+---------------+-------------------+
¦ After 15 mins.Dipa ¦ ¦ Dipa called ¦ ¦
¦ went towards the phone¦ ¦ Balan at 1.15 ¦ ¦
¦ and narrated the ¦ ¦ informing ¦ ¦
¦ incident to Balan ¦ ¦ about the ¦ ¦
¦ ¦ ¦ incident ¦ ¦
+---------------------------------------------------------------------------+
¦ Dipa disconnected the ¦ ¦ Balan tried ¦ ¦
¦ call ¦ ¦ dialing 100 ¦ ¦
¦ ¦ ¦ (police ¦ ¦
¦ ¦ ¦ control) but ¦ ¦
¦ ¦ ¦ was unable to ¦ ¦
¦ ¦ ¦ get through ¦ ¦
+-----------------------+---------------+---------------+------------------++
¦ Therefter Indira went ¦ Indira went ¦ Balan knocked ¦ Balan knocked the¦¦
¦ crawling towards the ¦ towards the ¦ on ¦ door and woke ¦
¦ door and opened it ¦ door crawling ¦ Shashindran’s ¦ Shashindran up ¦
¦ ¦ and opened it ¦ door ¦ ¦
++----------------------+---------------+---------------+-------------------+
¦ Indira screamed ¦ ¦ Balan narrated¦ Balan narrated ¦
¦ "bachav bachav" ¦ ¦ the story to ¦ the entire story ¦
¦ ¦ ¦ Shashindran ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ ¦ ¦
( 47 )
¦ Prabhu screamed ¦ Prabhu ¦ Balan asked ¦ Balan asked for ¦
¦ "Mummy Mummy" ¦ screamed ¦ Vasai Police ¦ Vasai Police ¦
¦ ¦ "Mummy Mummy" ¦ station’s ¦ station’s number ¦
¦ ¦ ¦ number ¦ ¦
¦-----------------------+---------------+---------------+-------------------+
¦ ¦ Prabhu gave a ¦ ¦ Shashindran called¦
¦ ¦ dying ¦ up his brother & ¦
¦ ¦ declaration ¦ ¦ asked for the ¦
¦ ¦ to Indira ¦ ¦ number ¦
¦ ¦ that Dilip, ¦ ¦ ¦
¦ ¦ Manoj,Sunil & ¦ ¦
¦ ¦ one more ¦ ¦
¦ ¦ person assaulted ¦ ¦
¦ ¦ him with knife ¦ ¦
¦-----------------------+---------------+---------------+-------------------+
¦ ¦ Indira shouted¦ ¦ Shashindran called¦
¦ ¦ for help ¦ ¦ up vasai police ¦
¦ ¦ "bachav bachav" ¦ station, they said¦
¦ ¦ ¦ ¦ that it fell under¦
¦ ¦ ¦ ¦ Manikpur ¦
¦ ¦ ¦ ¦ jurisdiction ¦
+-----------------------+---------------+---------------+-------------------+
¦ Dipa became ¦ Indira, Dipa ¦ Balan called ¦ Balan called up ¦
¦ unconscious ¦ & Prabhu were ¦ up Manikpur ¦ Mainkpur Police ¦
¦ ¦ taken to the ¦ Police station¦ station ¦
¦ ¦ hospital by ¦ ¦ ¦
¦ ¦ the police ¦ ¦ ¦
¦ ¦ ¦ ¦ ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ Indira became ¦ No satisfactory They refused to ¦
¦ ¦ unconscious ¦ reply from ¦ lodge complaint & ¦
¦ ¦ ¦ Manikpur told them to lodge¦
¦ ¦ ¦ Police station¦ a complaint at ¦
¦ ¦ ¦ ¦ Waliv ¦
¦----------------------------------------------------------------------------
+-----------------------+---------------+---------------+-------------------+
¦ Dipa regained ¦ Indira regained Balan left from Shashindran left ¦
¦ consciousness in the ¦ consciousness ¦ Andheri at ¦ at 3.00 am with ¦
¦ hospital ¦ about 15 days ¦ 3.00 am for ¦ Balan and his son ¦
¦ ¦ ¦ Waliv with ¦ Srijit ¦
¦ ¦ ¦ Shashindran ¦ ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Balan & ¦ Balan & Shashindra¦
¦ ¦ ¦ Shashindran ¦ reached at 4.00 ¦
¦ ¦ ¦ reached at ¦ am. ¦
¦ ¦ ¦ 4.00 am. ¦ ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ There was ¦ There was crowd ¦
¦ ¦ ¦ crowd in front¦ in front of the ¦
¦ ¦ ¦ of the house ¦ house ¦
¦ ¦ ¦ ¦ ¦
¦ ¦ ¦ ¦ ¦
+-+---------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Bijit’s dead ¦ Bijit’s body in ¦
( 48 )
¦ ¦ ¦ body was in ¦ front of the door ¦
¦ ¦ ¦ front of the ¦ in a pool of blood¦
¦ ¦ ¦ door of the ¦ (corroborated with¦
¦ ¦ ¦ house ¦ evidence of PW-10)¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ ¦ ¦
¦ ¦ ¦ ¦ Entered the entire¦
¦ ¦ ¦ ¦ floor was flooded ¦
¦ ¦ ¦ ¦ with blood ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Krishnan’s ¦ Krishnan’s body ¦
¦ ¦ ¦ body near the ¦ in front of the ¦
¦ ¦ ¦ kitchen door kitchen door ¦
¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Asked ¦ ¦
¦ ¦ ¦ neighbours ¦ ¦
¦ ¦ ¦ about Prabhu, ¦ ¦
¦ ¦ ¦ Indira & Dipa ¦ ¦
+-----------------------+---------------+---------------+------------------++
¦ ¦ ¦ Balan & ¦ Balan & Shashindra¦
¦ ¦ ¦ Shashindran ¦ went to Manikpur ¦
¦ ¦ ¦ went to ¦ Police Stn.at ¦
¦ ¦ ¦ Manikpur ¦ 5.00 am ¦
¦ ¦ ¦ Police stn. ¦ ¦
¦+----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Balan lodged ¦ Balan lodged a ¦
¦ ¦ ¦ a complaint ¦ complaint ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Balan & ¦ Balan & Shashindra¦
¦ ¦ ¦ Shashindran ¦ went to the Vasai ¦
¦ ¦ ¦ went to the ¦ Primary Health ¦
¦ ¦ ¦ dispensary at ¦ Centre. ¦
¦ ¦ ¦ vasai ¦ ¦
+-----------------------+---------------+---------------+-------------------+
-----------------------------------------------------------------------------
¦ ¦ ¦ ¦ Prabhu, Dipa & ¦
¦ ¦ ¦ ¦ Indira in the ¦
¦ ¦ ¦ Hospital and had ¦
¦ ¦ ¦ sustained injuries¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Balan saw ¦ Shashindran saw ¦
¦ ¦ ¦ Prabhu had ¦ Prabhu has ¦
¦ ¦ ¦ sustained ¦ sustained injuries¦
¦ ¦ ¦ injuries over ¦ over his chest, ¦
¦ ¦ ¦ his chest & ¦ stomach and over ¦
¦ ¦ ¦ stomach. ¦ the ribs of right ¦
¦ ¦ ¦ ¦ side and over his ¦
¦ ¦ ¦ ¦ left hand ¦
¦ ¦ ¦ ¦ ¦
¦+----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Indira had ¦ Indira had injurie¦
¦ ¦ ¦ sustained ¦ from her face upto¦
¦ ¦ ¦ injuries over ¦ the neck and her ¦
( 49 )
¦ ¦ ¦ her neck left had palm ¦
¦ ¦ ¦ chin, & cheek ¦ ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Dipa had ¦ Dipa had injuries ¦
¦ ¦ ¦ injuries over ¦ over her lips, ¦
¦ ¦ ¦ her lip, ¦ shoulder and waist¦
¦ ¦ ¦ shoulder, ¦ ¦
¦ ¦ ¦ waist & stomach ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ Balan stayed ¦ Shashindran carrie¦
¦ ¦ ¦ back ¦ Prabhu, Dipa, ¦
¦ ¦ ¦ ¦ Indira and one ¦
¦ ¦ ¦ ¦ more person to ¦
¦ ¦ ¦ ¦ Bhagwati hospital ¦
¦ ¦ ¦ ¦ in ambulance ¦
+-----------------------+---------------+---------------+------------------++
¦ ¦ ¦ ¦ Dipa and Indira ¦
¦ ¦ ¦ ¦ were unconscious ¦
¦ ¦ ¦ ¦ ¦
¦+----------------------+---------------+---------------+-------------------+
¦ ¦ ¦ ¦ Prabhu disclosed ¦
¦ ¦ ¦ ¦ me that Sushma’s ¦
¦ ¦ ¦ ¦ brother Dilip, ¦
¦ ¦ ¦ ¦ Manoj, Sunil and ¦
¦ ¦ ¦ ¦ one more person ¦
¦ ¦ ¦ ¦ had inflicted ¦
¦ ¦ ¦ ¦ blows with knife ¦
¦ ¦ ¦ ¦ over Prabhu & his ¦
¦ ¦ ¦ ¦ family members. ¦
¦ ¦ ¦ ¦ ¦
+-----------------------+---------------+---------------+-------------------+
36. The prosecution has examined PW-5, PW-6 and PW-12
being the doctors who conducted the post-mortem on the
above four deceased persons. We have also perused the
Post-Mortem reports of all the above four deceased which
are duly proved. The Post-Mortem reports as well as the
evidence of the above doctors clearly corroborates the
ocular evidence with regard to the injuries inflicted on
the deceased persons. Over and above, the prosecution
case is fully supported by the oral dying declaration of
( 50 )
Prabhu made to Shashindran.
37. In this case, the evidence of two eye-witnesses who
themselves were victims of serious injuries due to the
attack by the accused, is found to be totally reliable
and the same is completely corroborrated by the medical
evidence. If that be so, the evidence of two
eye-witnesses clearly corroborrated by the medical
evidence, is sufficient to convict the accused persons,
as has been held by the Hon’ble Supreme Court in the
case of -
(a) Kartarey V/s.State of U.P. - (1976) 1 SCC 172,
wherein the observations in paragraph No.27 are
relevant, which read as under:-
"27. The length and breadth of wounds Nos.9 and 10
was 6 cm x 2 cm each, while those of wound No.7 were
6.5 cm x 2.5 cm. This dimension-wise classification
of the injuries into three groups points with
reasonable certainty to the conclusion that stabs
Nos.1, 2, 3, 4, 5 and 15 were caused with one weapon,
stabs Nos.6, 8, 11, 12, 13 and 16 with another and
stabs Nos.7, 9 and 10 with a third. Thus the medical
evidence lends valuable corroboration to the ocular
account of the eye witnesses inasmuch as they say
that these injuries on the deceased were inflicted by
three persons, one with a chhura, Ex.P-1, and by the
other two with Katars."
(b) Ramjee Singh & Another V/s.State of Bihar - (2001) 9
SCC 528, wherein the observations in Paragraph No.11 are
very relevent, which read as under:-
( 51 )
"11. We have gone through the entire evidence.
Even if we discard the evidence which has been
discarded by the trial Court we find that PW4 in her
testimony categorically stated that on hearing the
screams of her daughter that her father was being
assaulted, she ran out of her house and watched all
the three accused causing injuries to the deceased.
Although she has not attributed the specific
injuries caused by each of the accused, she has
named all the three accused and stated that all of
them caused injuries. Submission for the learned
Counsel for the appellants that no reliance could be
placed on the testimony of Rajpati Devi, PW 4 as she
being the wife of the deceased and there being a
family dispute within the family, was an interested
witness cannot be accepted. As the incident had
taken place just near the house of the deceased and
PW-4 was present at the house, she was a natural
witness to the occurrence. She had also received
injuries in the same occurrence and this fact was
duly coroborated by the injury record and the
evidence of PW-7 Dr.Nawal Kishore who examined her
soon after the incident. She being the wife of the
deceased there was no reason for her to leave the
real culprits and implicate the accused persons
falsely. The suggestions made in the
cross-examination that the place of occurrence was
different than the one which has been shown by the
prosecution cannot be accepted. The suggestion put
to PW-4 that her husband was caught while committing
immoral act in the field is far-fetched and
imaginary. There is nothing on the record to
indicate that the occurrence did not take place at
the place where it is alleged to have been placed."
(c) K.S.Bhaskara Reddy V/s.G.A.Reddy - (1998) 9 SCC 504,
wherein, the relevant observations of the Supreme Court
in paragraph No.5 & 9 read as under:-
"5. From the judgment of the trial court, which
runs through 120 pages, we find that after a
detailed discussion of the entire evidence adduced
by the parties, in the light of the diverse
arguments canvassed on their behalf to establish
their respective cases, it held that the evidence of
PWs 1 to 4 was trustworthy and that the medical
evidence fully corroborated their ocular version.
The other reasons which weighed with it to accept
the evidence of PW-1 and for that matter the
prosecution case- were that the injuries found on
( 52 )
his person by PW-10 proved his presence at the time
of the incident and that he lodged the FIR detailing
the substratum of the prosecution case at the
earliest available opportunity. In arriving at the
above conclusions, the trial court observed that the
entries in the hospital record on the basis of which
DWs 4 & 5 testified were wholely unreliable; that
the evidence adduced by the defence to prove that
PW-4 was working in the rice mill at the material
time was unacceptable; and that the report
(Ext.D-12) sent by DW-1 did not in any way discredit
the prosecution version as regards the place of
incident."
"9. On a perusal of the record we are constrained
to say that each of the reasons given by the High
Court for recording the order of acquittal in favour
of A-3 to A-6 is patently wrong. That apart, some
of the observations made by the High Court in that
regard stand contradicted by its other observations.
For example, having observed that it was quite aware
of the fact that PW-1 was severely injured and he
might not have been in a mood to narrate the
incident in great detail the High Court could not
have expected of PW-1 nor was it necessary to give
the graphic details of the rules played by each of
the accused in the murder. While on this point it
will be pertinent to refer to the statements made
therein. After giving the background of the enmity
between their family and that of the accused PW-1
stated that on 31.7.1992 at or about 5.00 p.m. when
he, his father and coolies were in their field the
six accused persons came there armed with knives and
spears and suddenly attacked his father. A-1 hacked
him with a knife on the head and A-2 with a spear on
the neck and then the other accused assaulted him
(the deceased) with knives and spears
indiscriminately. This was followed by a statement
as to the manner of assault on him by some of the
accused. Lastly he stated that PW-2 witnessed the
incident and PW-4 had brought him to the hospital.
It would thus be seen that all the material facts
relating to the incident find place in the FIR, and,
therefore, the High Court was not at all justified
in brushing aside the prosecution case regarding
participation of A-3 to A-6 in the murder on the
sole ground that the manner in which they actually
assaulted the deceased was not mentioned therein.
Absence of the names of A-3 and A-4 in the FIR
should not also have been made one of the grounds to
discard their evidence when it was specifically
mentioned therein that coolies were worling with
them in their field at the time of the assault
(which necessarily meant that they were witnesses to
the incident) and when admittedly PWs 3 and 4 work
( 53 )
as coolies. Incidently, it may be mentioned that
the name of PW 4 does find place in the FIR (as
noticed earlier) as the person who took PW 1 to the
hospital."
(d) S.C.Ukabhai V/s.State of Gujrat - 1983 (2) SCC 174,
wherein the relevant observations of the Supreme Court
in paragraph Nos.12 & 13 read as under:-
"12. In the opinion of the High Court it would not
be proper to discard the testimony of eye-witnesses,
if it was otherwise satisfactory, on the simple
ground that the medical testimony was in conflict
with the testimony of the witnesses, insofar as they
depose to the injuries on the deceased having been
caused by a spear."
"13. Ordinarily, the value of medical evidence is
only corroborative. It proves that the injuries
could have been caused in the manner alleged and
nothing more. The use which the defence can make of
the medical evidence is to prove that the injuries
could not possibly have been caused in the manner
alleged and thereby discredit the eye-witnesses.
Unless, however the medical evidence in turn goes so
far that it completely rules out all possibilities
whatsoever of injuries taking place in the manner
alleged by eye-witnesses, the testimony of the
eye-witnesses cannot be thrown out on the ground of
alleged inconsistency between it and the medical
evidence."
38. The contention of Mr.Ramakant Patil, the learned
Counsel appearing for the original Accused No.1 - Dilip
that the FIR lodged at 5.30 a.m. was a concocted FIR as
Balan was not the eye witness, cannot be sustained. The
entire incident was narrated to PW-1 Balan by PW-4 Deepa.
Thereafter the Balan had visited the scene of offence and
had spoken to Deepa and Prabhu etc. and thereafter the
said complaint has been registered. The contention of
the learned Counsel Mr.Ramakant Patil that a mere message
( 54 )
about some incident in that area received by PW-10
Shashikant Bhosale should not have been treated as FIR,
cannot be accepted.
39. Mr.Ramakant Patil, the learned Counsel appearing for
Accused No.1 Dilip also raised the issue that Abhayraj’s
body was found 300 ft.away from the residence and as
such, the FIR and the prosecution story ought not to be
believed. With regard to the above, the evidence led
clearly establishes that the Abhayraj was attacked and
chased by Sunil and ultimately after receiving several
injuries Abhayraj seems to have ran away and collapsed
around 300 ft away from the residence. Abhayraj being a
young person must have obviously kept running after
receiving knife injuries and he was being cahsed by the
accused, and there is nothing unusual if his body is
being found 300 ft away from the residence.
40. The plea of the learned Counsel Mr.Ramakant Patil
that some unknown persons must have attacked all these
six persons of whom four persons died since some
buffaloes of deceased Krishnan might have damaged some
fields, cannot be believed at all. There is absolutely
no material for such a probability . Over and above, why
injured witnesses Deepa and Indira should protect the
real assailants and implicate Dilip and his associates.
Even Prabhu’s oral dying declaration supports the
prosecution case.
( 55 )
41. Similarly, the contention of Mr.Sandesh Patil, the
learned Counsel appearing on behalf of Accused No.3 -
Manoj that the FIR was lodged belatedly, cannot be
sustained. Mr.Patil submitted that there are a number of
contradictions in the evidence of both the eye-witnesses
viz.Deepa & Indira; and as such, the benefit of doubt
ought to be given to Accused Manoj, cannot also be
sustained since the evidence of both the eye-witnesses is
cogent, convincing and truthful, as analysed hereinabove.
Similarly, the contention of Mr.Sandesh Patil, the
learned Counsel for the accused Manoj that the evidence
of Shashindran ought not to be believed, is also
unsustainable as his evidence is not unreliable. The
objection raised by the learned Counsel Mr.Sandesh Patil
that Deepa ought to have lodged the complaint, cannot
also be sustained since Deepa was injured critically. By
the time Balan had reached and he has given all the
details by Deepa and the FIR was accordingly registered.
At that time the police were also anxious to take Deepa,
Prabhu and Indira to the Hospital to save their lives and
hence they were rushed to the hospital. The contention
of the learned Counsel Mr.Sandesh Patil that there were
stitches on Deepa’s lips and hence recording of Deepa’s
statement is doubtful, cannot also be sustained since
stitches were only in the corner of the lips, right upper
lip and right lower lip.
( 56 )
42. Though the learned Counsel Mr.Sandesh Patil has also
raised objection that there were serious contradictions
in PW-8 Indira’s evidence, we however find no serious
contradictions on material aspects and that there are no
material improvements also. Though it was contended by
the learned Counsel Mr.Sandesh Patil that Deepa had not
stated before the Police that all the accused were armed
with knives, there is however no dispute that Deepa had
described the actual sequence of attack with knives, and
hence such an omission on her part wound not be a serious
omission since Deepa in her subsequent statement recorded
before the police has clearly stated that all the accused
had used knives while inflicting the blows. Even not
mentioning Manoj and Sunil as "friends of Dilip" is not a
serious omission, as she has clearly mentioned their
names. Mr.Sandesh Patil’s objection regarding non
conducting of identification parade cannot be sustained,
as there is no flaw since prosecution witnesses Deepa and
Indira knew Manoj Paswan by name. Even Mr.Patil’s
objection that the motive was not established, cannot be
sustained especially in view of the evidence of Sushma,
being the sister of Dilip.
43. Mr.Sandesh Patil, the learned Counsel for the
Accused Manoj has also raised an issue that the clothes
of the accused Manoj were not sent to the Chemical
Analyser and that there was no report of the Chemical
Analyser with regard to the knife. It may be noted here
( 57 )
that this case is not based solely on circumstantial
evidence and it is based on a clear evidence of two
reliable and truthful eye-witnesses and fully
corroborrated by the medical evidence and also the oral
dying declaration of Prabhu, and hence the objections
raised by the learned Counsel Mr.Sandesh Patil cannot be
sustained.
44. Mr.Raj, the learned Counsel appearing on behalf of
the original accused No.2 - Sunil Yadav has sought to
contend that the omissions of the names of accused Manoj
Paswan and Sunil Yadav by Balan in the FIR, tantamounts
to contradiction. It is to be noted here that Balan was
not knowing Manoj Paswan and Sunil Yadav personally
whereas he was aware of Dilip as Dilip being the brother
of Sushma who had married with his relative Prabhu, and
as such, their names are not mentioned in the FIR.
However, he has categorically stated that Dilip alongwith
his friends had attacked. Balan was not an eye-witness
to the incident hence his omission to mention the names
of the accused Manoj and Sunil would not be fatal to the
prosecution. The Supreme Court Judgments referred to by
Mr.Raj in that behalf are all eye witnesses lodging an
FIR cannot omit to mention the names, otherwise it will
be fatal. As Balan was not an eye witness, hence
omission to mention the names of Manoj and Sunil would
not be fatal.
( 58 )
. The contention of Mr.Raj, the learned Counsel
appearing on behalf of Accused Sunil Yadav that the
motive behind the crime has not been established, also
cannot be accepted as the sequence of events clearly show
that accused Dilip was harbouring discontent and revenge
as his sister Sushma had married with Prabhu who was
belonging to a very low caste. The evidence clearly
indicates that Dilip had repeatedly opposed very strongly
to the marriage of his sister with Prabhu.
. The learned Counsel Mr.Raj’s contention that Deepa had
not stated before PSI Barve that accused Sunil and Manoj
were Dilip’s friends, would not affect the case of the
prosecution as Deepa had categorically mentioned their
names. The failure on the part of Deepa to mention that
they were friends, wound not also change the complexion
of the case as she had seen & identified all the three
accused persons and one more unidentified person, and
therefore, the contention of the learned Counsel Mr.Raj
that the evidence of Deepa was untruthful & unreliable,
cannot also be sustained.
. Though it is the contention of the learned Cousnel
Mr.Raj about the evidence of Shashidharan that there was
no mention of knife being used for inflicting blows, we
would like to mention here that Shashidharan was not the
eye-witness to the incident and as such his failure to
mention knife would not be fatal to the prosecution case.
( 59 )
Both the eye-witnesses have categorically mentioned of
knives being used for inflicting the injuries. Even the
contention of the learned Counsel Mr.Raj with regard to
the evidence of Balan giving more details which are not
found in the FIR, also has no substance since the FIR
contains basic details and obviously in the evidence
based on the questions further details have been given.
Balan not mentioning about telling all details to
Shashindran and Sushma is not serious infirmity since FIR
will contain only all relevant and basic details.
Shashindran’s evidence also cannot be faulted similarly.
. The learned Counsel Mr.Raj has also raised an issue
that Indira was not mentally stable while she deposed and
as such, she was icompetent to depose. His objection was
that the Court ought to have verified whether she was
mentally fit to depose. From the evidence of Indira
however one does not find any mental disability. There
is nothing incoherent in her evidence and as such, the
learned Sessions Judge was not required to get her
medically examined before she deposed. Mr.Raj’s
objection regarding Indira not mentioning about the
knocking of door and entering of four persons, is not a
flaw, as she came in later. Various other minor flaws
pointed out are not of much consequence.
. The objections of the learned Counsel Mr.Raj with
regard to certain contradictions and improvements with
( 60 )
regard to the evidence of the investigationg officer,
cannot be sustained, and none of them are very material
in nature. Even the objection of the learned Counsel
Mr.Raj with regard to the arrest panchanama being not
recorded properly, will have no much consequence as there
is no dispute that his client was arrested and later on
tried for the aforesaid offence.
. The learned Counsel’s objection regarding non
examination of one neighbour Dipa Yashwant Kakad, has no
substance, as she had only seen Indira wearing a maxi
soaked with blood just outside the house. There is no
dispute that she went out of the door shouting "Bachao,
Bachao".
. Similarly, even the delay of 16 days in recording
Indira’s statement cannot be faulted, as Medical Officer
had clearly opined that she was not fit to make a
statement.
. Mr.Raj is right that Court should not mechanically
follow the evidence of the prosecution, but in the
instant case, after a detailed analysis as pointed out
hereinabove, the guilt is clearly established.
. The doctor’s statement that the injury on Abhayraj
could be caused by knife, sickle or sword, will be of no
assistance to Sunil, as all the three accused including
( 61 )
Sunil were carrying knives.
. Even the evidence of two witnesses led by way of
defence by Sunil will be of no help, as they deal with
the alleged discrepancy in the time of arrest of Sunil.
. Hence we do not find any ground made out by Mr.Raj to
give the benefit of doubt to Sunil.
45. Under the aforesaid facts and circumstances, after
taking into account the entire evidence, submissions of
all the learned Counsel for the Accused and the learned
Public Prosecutor, we find the following:-
a) The evidence of eye witnesses Deepa and Indira who
were victims of serious injuries, is cogent,
convincing, truthful, reliable and natural.
b) Both the eye witnesses have truthfully deposed to
whatever they had seen and not artificially added what
they had not seen, which they could have done if they
were to be untruthful.
c) Eye witness account of both the witnesses sound
very natural.
d) There is absolutely no reason as to why both the
seriously injured eye witnesses Deepa and Indira would
( 62 )
falsely implicate Dilip and his associates and let off
the real culprits.
e) Evidence of both the eye witnesses with regard to
the injuries is clearly corroborated by medical
evidence.
f) The prosecution case is fully supported by the oral
dying declaration of Prabhu.
46. In the above case, common intention, especially
pre-concert and meeting of mind is very clear, since all
the three accused came to the house of Krishnan at 1.15
a.m. together. When the door was opened, they all
entered the house with knives in their hands, and with
military precision killed four persons and seriously
injured two.
47. Evidence of Dipa and Indira, injured witnesses and
the medical evidence clearly corroborates the offence of
attempt to murder punishable u/s.307 read with Sec.34 of
the Indian Penal Code. Evidence clearly establishes the
guilt of Dilip and Manoj with regard to the above offence
of attempt to murder Dipa. Similarly, the evidence of
Indira and Dipa alongwith medical evidence clearly
establishes the offence of attempt to murder Indira by
both Dilip and Manoj, and hence Dilip & Manoj are guilty
u/s.307 read with Sec.34 of the Indian Penal Code.
( 63 )
48. From the evidence of injured witnesses Dipa and
Indira, corroborated by the medical evidence, accused
Dilip, Manoj & Sunil are guilty of the offence of
criminal tresspass with common intention committed house
tresspass by entering into and thereafter unlawfully
remained in the dwelling house of Krishnan, by making
preparation and causing hurt to all the four deceased and
to Dipa and Indira by deadly weapons like knives,
punishable under Section 452 read with Sec.34 of the
Indian Penal Code.
49. Applying the principles laid down in various
judgments of the Supreme Court as mentioned hereinabove,
and after giving a deep consideration with regard to
imposition of death penalty, after taking into account
the mitigating factor of lack of criminal antecedents,
however young age is not a mitigating factor, and taking
into account the following aggravating circumstances:-
(a) Helpless victims;
(b) Victims totally unarmed;
(c) Victims woken up from sleep at midnight;
(d) Manner of inflicting injuries, 20-30 serious
injuries on each of the deceased, whereas even a
single injury would have been sufficient to kill,
shows the barbarous attitude;
(e) Attacking ruthlessly six persons, Deepa & Indira
were let off presumed to be dead, seeking to wipe off
the entire family;
( 64 )
(f) Attacked 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 midnight 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 17.5.2004, i.e.after a lapse of seven months.
As Dilip was totally opposed to the marriage, the
above attack was highly pre-meditated and not at the
heat of the moment;
we are clearly of the view that Dilip, Manoj and Sunil
deserve to be imposed Death Penalty.
50. Hence we find Dilip and Manoj guilty of causing the
murder of Krishnan, Prabhu and Bijit, punishable under
Section 302 of the Indian Penal Code read with Section 34
of the Indian Penal Code.
51. Similarly, we find Sunil guilty of causing the
murder of Abhayraj, punishable under Section 302 of the
Indian Penal Code read with Section 34 of the Indian
Penal Code.
52. We concur with the Trial Court judgment to the above
extent. We also concur with the Trial Court with regard
to imposition of Death Penalty on Dilip Tiwari, Manoj
Paswan and Sunil Yadav and confirm the Death Penalty
imposed of them. Hence, the following order:-
( 65 )
ORDER
1. Accused Dilip, Sunil and Manoj are convicted vide
Section 235(2) of Cr.P.C. for the offence punishable
under Section 302 r/w.Section 34 of the Indian Penal
Code and they are sentenced to death.
2. Accused Dilip and Manoj are also convicted for the
offence punishable under Section 307 r/w.Section 34 of
the Indian Penal Code and are sentenced to suffer
Rigorous Imprisonment for ten years and to pay a fine
of Rs.5000/- each (Rs.Five Thousand Each), in default
to suffer further Rigorous Imprisonment for five
months each.
3. Accused Dilip, Sunil and Manoj are also convicted
for offence punishable under Section 452 r/w.Section
34 of the Indian Penal Code and sentenced to suffer
Rigorous Imprisonment for three years and to pay a
fine of Rs.1000/- each (Rs.One Thousand each), in
default to suffer further Rigorous Imprisonment for
one month each.
4. Sentences of imprisonment to run concurrently.
5. Accused Dilip is in Jail since 29.05.2004, Accused
Sunil is in Jail since 02.06.2004 and Accused Manoj is
in Jail since 22.06.2004. Set off is given for that
period as per Section 428 of the Cr.P.C.
6. Death Sentences imposed on Dilip, Manoj and Sunil
are confirmed.
53. Both the Criminal Appeals viz.Criminal Appeal
No.1086 of 2006 & the Criminal Appeal No.156 of 2007
stand dismissed, and the Confirmation Case No.2 of 2007
stands allowed.
(SMT.R.S.DALVI,J.) (DR.S.RADHAKRISHNAN, J.)