"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1026 OF 2008


Dilip Premnarayan Tiwari & Anr. .... Appellants

Versus

State of Maharashtra .... Respondent

WITH

CRIMINAL APPEAL NO.1025 OF 2008

Sunil Ramashray Yadav .....Appellant

Versus

State of Maharashtra ....Respondent

J U D G M E N T

V.S. SIRPURKAR, J.


1. This judgment will dispose of two appeals, they being

Criminal Appeal No.1026 of 2008, filed on behalf of the appellant

accused Dilip Premnarayan Tiwari and Manoj Paswan, as also

Criminal Appeal No.1025 of 2008 filed by Sunil Ramashray Yadav.

Their appeals against their convictions by the Sessions Judge have

been dismissed by the Bombay High Court and the death sentence

awarded to all the three accused has also been confirmed.

2. As many as five accused persons were tried by the Trial

Court for offences under Section 302, 307, 452 read with Section

120B of the Indian Penal Code (`IPC' for short) and Section 34 and

Section 120B, IPC (substantive). Eventually, original accused No.

4, Premnarayan Brijkishore Tiwari and accused No.5 Tulsa Devi were
acquitted by the Trial Court whereas the other three accused

persons, namely, accused No.1, Dilip Premnarayan Tiwari, accused

No.2, Sunil Ramashray Yadav and accused No.3, Manoj Tulshi Paswan

were convicted under different Sections for various offences

including Section 302 read with Section 34, Section 307 read with

Section 34, IPC and Section 452 read with Section 34 of the IPC.

While they were awarded death sentence for the offence under

Section 302, they were awarded 10 years' rigorous imprisonment

with fine of Rs. 5,000/- each, and in default, to suffer 5 month's

imprisonment each for offence under Section 307 read with Section

34, IPC and three year's rigorous imprisonment and to pay a fine

of Rs. 1,000/- each, in default, to suffer one month's

imprisonment.


3. Since it was a death sentence matter, reference was made to

the High Court for the confirmation of the death sentence and the

accused also filed appeals against their conviction and the

punishment therefor before the High Court. The High Court has

confirmed the death sentence while the appeals of the accused

persons were dismissed. That is how these two appeals have come

before us.


4. As per the prosecution case, accused No.1, Dilip

Premnarayan Tiwari, is the son of original accused No. 4,

Premnarayan Brijkishore Tiwari, and original accused No. 5, Tulsa

Devi is the wife of accused No.4. Accused No.1, Dilip's sister

Sushma fell in love with deceased Prabhu who used to live in the

neighbourhood of their residential house. Ultimately, she got
married to Prabhu. Prabhu being a Keralite and belonging to

`Ezhava' caste, the marriage was not approved of by the family of

Sushma since Sushma belonged to a Brahmin caste from the State of

Uttar Pradesh. The whole family of Sushma was extremely opposed

to the marriage which took place on 29.10.2003 before the

Registrar of Marriages, Bandra, Mumbai. According to the

prosecution, there were efforts to call back Sushma into her

familyfold. According to the prosecution, she was threatened and

so were her in-laws by original accused No.1, Dilip.


5. The love affair of Sushma with deceased Prabhu was going on

for about 5-6 years and deceased Abhayraj @ Bachhu and Bijit used

to act as messengers between the two. They were also threatened

during the love affair by Dilip as well as his mother, original

accused No.5, Tulsa Devi. According to the prosecution, accused

Dilip had assaulted Sushma with kicks and fist blows on account of

her love affair with Prabhu and had also threatened that in case

she married Prabhu, both will be eliminated. However, as has been

stated earlier, the marriage took place on 29.10.2003 and after

the marriage Sushma started residing with her husband, deceased

Prabhu. She was a college going girl at the time of her marriage

and she continued her education even after her marriage. Accused

No. 5, Tulsa Devi also advised her to leave Prabhu. She also

promised her that her second marriage would be arranged in Uttar

Pradesh. Her elder sister Kalpana, who is already married had

also tried to contact Sushma and had come to the house of Sushma

to meet her. She had also met Sushma on 08.05.2004 in her college

and tried to persuade her that her husband was not smart and was
not earning anything and, therefore, she should accompany her to

their hometown in Uttar Pradesh where they had selected one youth

serving in the Air Force and that Sushma should marry him. Sushma

straightaway refused all these proposals. In fact, on account of

these threats, Sushma had suggested that a police complaint should

be lodged against Tiwari family. However, she was assured by her

husband Prabhu that everything would be alright with the passage

of time. There were even proposals that on account of the

threats, Sushma and Prabhu should leave Bombay and stay in his

hometown in Kerala. However, instead of doing that, Sushma, who

was pregnant at that time, was sent to Prabhu's relative's house

in Andheri and that is how Sushma was shifted to the house of

Shashidharan, PW-2. Shashidharan's wife was the sister of

Prabhu's mother, Indira. One Balan, PW-1 also used to live in

Andheri. His wife was the third real sister of Prabhu's mother,

Indira.


6. The ghastly incident took place on the night of 16/17th May,

2004. On that day, Prabhu's father Krishnan Nochil himself, his

nephew Bijit, Prabhu's sister, Deepa (PW-4) and Indira (PW-8) were

present in the Noichil household. At about 1.15 a.m. at night

someone knocked the back side door of their house. Deceased

Krishnan Nochil opened the door. According to the prosecution,

the three appellants, namely, Dilip (A-1), Manoj (A-3) and Sunil

(A-2) and one more unknown person entered the house. Dilip and

Manoj assaulted Krishnan Nochil with knife over the chest, stomach

and when Prabhu rushed to save his father, accused No. 1, Dilip

and accused No. 3, Manoj assaulted him also with knife and stabbed
him in stomach and chest. As per the prosecution case, Dilip

asked Sunil and one unknown person to take Prabhu out of the house

and kill him. When Deepa (PW-4) started proceeding ahead to save

her brother, Dilip and Manoj rushed towards her with knife and at

that time Bijit who had come there caught hold of accused Manoj

and urged him not to assault her. At that time accused Manoj

inflicted blows with knife over hand, chest and cheek of Bijit as

a result of which Bijit fell down. The accused Dilip and Manoj

came near Deepa and inflicted blows with knife on her face and

body and when Deepa fell down, Indira, Prabhu's mother who was

awakened, tried to intervene. At that time, she was also

assaulted by Dilip (accused No.1) and Manoj (accused No.3). At

that time, Sunil who had gone out along with the unknown assailant

came back and inflicted knife blows over the neck of Abhayraj @

Bachhu who had in the meantime come there. Abhayraj was the

immediate neighbour and used to live in between the houses of

Tiwari household and Noichil household. Having been assaulted, he

ran outside when Sunil (original accused No.2) chased him and

assaulted him also. Accused Dilip and Manoj then left the house

and while leaving, Manoj had dropped the knife in that room.

Deepa who was severely injured gathered her courage and after 10-

15 minutes of the assault contacted PW-1, Balan on phone and

informed him about the incident of assault at the instance of

accused No.1 Dilip, accused No.3 Manoj and accused No, 2 Sunil and

one more person. Indira, mother of Prabhu who was also seriously

injured somehow opened the front door and shouted `bachao bachao'.


7. At this time Prabhu was lying in an injured condition in
front of the door and was shouting `mummy mummy''. Balan (PW-1),

on receiving the phone call in the dead of night from Deepa,

rushed to the Noichil household in Khairpada Waliv at about 4'O

clock in the morning only to find that his son Bijit and brother-

in-law Krishnan Nochil were dead and lying in the pool of blood

while Deepa, Indira and Prabhu who were alive, were shifted to the

local dispensary by Head Constable Bhosale who was on bandobast

duty at check post, Sativali Khind, who had rushed to the spot on

being informed. Bhosale had also sent a message to Manikpur

Police Station to send one mobile van. Bhosale also brought one

tempo and arranged to send the three injured to Primary Health

Centre, Navghar.


8. By that time, Balan who was informed by Deepa had contacted

Shashidharan and come to Navghar along with Shashidharan.

Thereafter, all the injured were taken to one Bhagvati hospital as

they were very seriously injured and could not have been treated

in the Primary Health Centre at Navghar. Deepa and Indira were

not in a condition to speak, however, Prabhu disclosed to

Shashidharan who was accompanying them in the mobile van that

Sushma's brother Dilip, Manoj and Sunil and one more person had

inflicted knife blows and had injured him and other persons of the

family.


9. The injured Prabhu reached Bhagvati hospital along with

Shashidharan in the mobile van and there he also succumbed to his

injuries. Deepa had lost her consciousness while Indira was also

very seriously injured and they were treated in the Hospital. But
before that, at about 5 a.m. Balan came to the police station and

lodged the First Information Report which was registered as

C.R.No. 1-144/04 registered at about 5.30 a.m. for the offence

under Section 302 and 307, 452 read with Section 34 of the IPC.

The police reached the spot and PSI Shri Bharve prepared the

inquest Panchnama of the dead bodies of Krishnan Nochil and Bijit.

He also prepared the inquest Panchnama of Abhayraj who was lying

outside the house near K.T.Maidan and, thereafter, all the three

dead bodies were sent for post-mortem examination. Investigation

officer also prepared the spot Panchnama and seized blood stained

handkerchief, blood stained iron knife which were lying there and

also collected the blood samples lying on the floor. Deepa's

statement came to be recorded on 18.05.2004 after she regained

consciousness. Prabhu's body was also sent for post-mortem.


10. During the investigation, the statements of witnesses like

Sushma and Indira came to be recorded. Dilip was arrested on

29.5.2004 from Uttar Pradesh. One knife, pant and shirt having

blood stains were recovered at the instance of Dilip. Since

Indira was very seriously injured, her statement could be recorded

on 02.06.2004 in the Hospital. Accused Sunil came to be arrested

on 02.06.2004. He has also disclosed on 05.06.2004 about the

knife and the blood stained clothes which were seized. Accused

No.2, Manoj came to be arrested only on 22.06.2004 while the

parents of Dilip (original accused No.1), Premnarayan Tiwari

(original accused No. 4) and Tulsa Devi (original accused No.5)

were also arrested on 25.6.2004. After the completion of the

investigation the charge sheet was filed against five named
accused and on that basis charges were framed against all the

accused persons. The Trial Court, however, acquitted original

accused Nos.4 and 5 since they had not taken part in the dastardly

attack and the charge of conspiracy under Section 120B, IPC also

was not proved against them, but awarded death sentence to the

remaining accused and that is how the matter has come before us.


11. Shri Gaurav Agrawal, Advocate appeared for accused No.1,

Dilip and accused No. 3, Manoj and Shri S.N. Raj, Advocate

appeared for accused No.2, Sunil while the State of Maharashtra

was represented by Shri Sushil Karanjkar, Advocate. Shri Gaurav

Agrawal attacked the findings of the Trial Court and the High

Court in respect of both the accused persons. The mainstay of his

argument was that the whole prosecution case stood on extremely

weak basis inasmuch as all the prosecution witnesses were

interested witnesses and as such it was very risky to rely on the

evidence of those witnesses. Learned counsel severely attacked

the so-called oral dying declaration by deceased Prabhu alleged to

have been made by him in the Ambulance Van to Shashidharan (PW-2).

Learned counsel argues that Prabhu who was severely injured and

who died barely within few hours of his reaching the Hospital

could not be said to be in the proper physical condition to make a

dying declaration. The counsel, therefore, urged that the

acceptance of such a weak piece of evidence for corroborating the

prosecution evidence could not be accepted. The learned counsel

also invited our attention to the fact that though from the

beginning, the case of the prosecution was that there were, in

all, four accused persons; the fourth accused person besides the
three appellants could neither be identified nor brought before

the law. Therefore, the whole prosecution case had become

mysterious. As regards the evidence of the eye witnesses, the

learned counsel pointed out that the said evidence of Deepa (PW-4)

and Indira (PW-8) was unnatural, apart from the fact that it was

riddled with material contradictions and omissions and was

contradictory inter se. The learned counsel also commented upon

the medical evidence suggesting that the said evidence was not

commensurate with the eye witness account. As regards the rest of

the circumstantial evidence, the learned counsel pointed out that

it was not trustworthy. Insofar as the verdict of the High Court

in confirming death sentence was concerned, the learned counsel

urged that this was not a rarest of rare case though as much as

four persons had lost their lives.


12. Shri Raj, learned counsel appearing on behalf of the

accused No.2, Sunil adopted the arguments of Shri Agrawal insofar

as they pertained to the evidence of the eye witnesses as also the

other aspects of the case. However, Shri Raj invited our

attention to the fact that after reaching the Hospital, the

deceased Prabhu had made a dying declaration which was recorded by

Doctor Shri S.S. Anakal (PW-5). He pointed out that the said

dying declaration was counter signed by the Investigating Officers

and the said dying declaration also bore the thumb impression of

deceased Prabhu Krishnan Nochil. Learned counsel further pointed

out that this dying declaration formed part of the charge-sheet

and was supplied to the accused persons along with the same. He

further pointed out that though this dying declaration was not put
to the witness, Dr. Anakal (PW-5) during the Trial before the

Sessions Judge, an application to that effect was filed before the

High Court and the High Court rejected the same. Learned counsel

issued a notice under Section 294 (2) Cr.P.C. to the Public

Prosecutor to admit this document whereupon the Public Prosecution

has admitted the said document. According to the learned counsel,

therefore, the non-consideration of the said dying declaration

very seriously prejudiced at least accused No.2, Sunil whose name

was not to be found in the said dying declaration. Learned

counsel, therefore, urged that the participation of Sunil (accused

No.2) was highly suspicious, more particularly, in view of the

fact that the identity of Sunil was not established by the

prosecution either by holding Test Identification Parade or even

in the Court hall as the witnesses had not specifically identified

the accused persons individually. Shri Raj also urged that the

absence of Sunil's name in the First Information Report given by

Balan (PW-1) speaks volumes and was not realized by the Courts

below. Shri Raj further urged that there was no reason for the

Courts below to presume that Sunil Yadav was a friend of Dilip and

Manoj as there was no evidence brought on record regarding their

acquaintance and even the prosecution had not collected any

evidence to establish the nexus between accused No.2, Sunil and

the other two accused persons. Shri Raj, therefore, argued that

accused Sunil was bound to be given the benefit of doubt.


13. It has come in evidence of Deepa (PW-4) that immediately

after the incident, though injured seriously, she managed to call

Balan (PW-1) on his landline and narrated the incident to him.
She undoubtedly claims that she had taken the names of Dilip (A1),

Manoj (A-3) and Sunil (A-2) as also one more person as the persons

who had assaulted her family members and herself. Because of the

presence of mind of Deepa to call Balan, Balan immediately went

into action and firstly contacted Shashidharan (PW-2), also a

resident of Andheri as Balan. Both these witnesses were related

to the family inasmuch as while Balan is the husband of PW-8,

Indira's sister, Shashidharan is the husband of Balan's wife's

sister meaning that she is the third sister of Indira though Balan

does not specifically say so in his evidence. Shashidharan

deposed that he was woken up by Balan at about 1.30 a.m. and was

told that Dilip, Manoj and Sunil along with their associate had

assaulted the members of Nochil family. Significantly enough,

Sushma, wife of deceased Prabhu was also at that time present in

his household, she having come to his house for staying allegedly

on account of the threats given to her by Dilip. Shashidharan

then seems to have contacted his brother Gopal Krishnan and with

his help contacted Vasai Police Station and informed about the

incident. However, he was informed by Vasai Police Station that

Waliv Kherpada where incident had taken place comes within the

jurisdiction of Manikpur Police Station. According to this

witness, he narrated this incident to Manikpur Police Station by

calling them but they refused and instead asked them to contact

Waliv Police Station.Thus, they left Andheri at about 3 a.m. and

reached the spot of occurrence Waliv at about 4 a.m. After

reaching there they came to know that the injured Deepa and Indira

along with injured Prabhu had been sent to the Primary Health
Cenre of Wasai. The claim of Shashidharan (PW-2) is that he and

Balan reached Manikpur Police Station at about 5 a.m. where Balan

lodged the complaint. We have seen the said report made by Balan

vide Exbt. P-27. It is to be seen specifically that in that

report he informed that Deepa Nochil had informed him at about

1.15 a.m. on 17.05.2004 that Dilip who was the brother of her

sister-in-law Sushma and his three associates had trespassed into

the house and had beaten all the inmates and had also given knife

blows to them and they still were engaged in assault and,

therefore, Balan should come as early as possible to Vasai.

Significantly enough, the names of accused Manoj and accused Sunil

are not to be seen in this report. It has also come in the report

that since Dilip and his family members did not approve of love

marriage of Sushma with Prabhu and inspite of their opposition

Sushma had married Prabhu; hence Dilip and his associates had

given blows with sharp weapon to his brother-in-law Krishnan,

sister-in-law Indira, her daughter Deepa, her son Prabhu and his

son, Bijit. It was also pointed out that Krishnan and Bijit had

died in the attack and Indira, her dauther Deepa and her son

Prabhu were seriously injured and were taken to the dispensary.

Though in his evidence Balan (PW-1) insisted that he had also told

the names of Dilip (A-1), Manoj (A-3) and Sunil (A-2), the names

of Manoj and Sunil are not to be found in the FIR. Though there

was a reference that Dilip (A-1) was accompanying three other

associates, the witness was specific in asserting that from the

spot of occurrence he did not go directly to the dispensary but

went to the Police Station first.
14. The further significant thing about the FIR is that there

is no reference to the death of Abhayraj who had also lost his

life. It is slightly unusual that though this witness as per his

admission knew Abhayraj, there is no reference of the name of

Abhayraj in the FIR. Shri Gaurav Agrawal, learned counsel tried to

take advantage of this and pointed out that the name of Manoj (A-

3) was not to be found in the FIR and that advantage must go to

Manoj on that account. It is also seen that the witness had also

failed to speak about the body of Abhayraj. In our opinion,

though the omission of names of Manoj and Sunil is significant,

much importance cannot be given to this omission. The FIR was

after all given by a person who had seen the body of his young son

having been brutally murdered. He had also seen the dead body of

his brother-in-law and had also come to know that the other three

members of the family of Krishnan were also seriously injured in

the incident. The witness is bound to be excited and some scope

would have to be given to the mental state of the witness at that

time. The significance of this omission will be considered when

we individually consider the case of each accused. The Trial

Court as well as the High Court have not attached much importance

to this omission and rightly so. However, the fact must be noted

at this juncture that though this witness PW-1, Balan had come to

know about the role played by Manoj (A-3) and Sunil (A-2), their

names were not mentioned in the report. After these two persons

went to the Primary Health Centre from the Police Station an

Ambulance was called as all the three injured persons were in a

serious condition and possibly could not have been treated in the
Primary Health Centre and, therefore, they had to be shifted to

the other Hospital.


15. At that time, during the journey to the hospital, Prabhu is

stated to be conscious and had told the names of Dilip, Manoj and

Sunil to Shashidharan who was accompanying the injured in the

Ambulance Van. That is the claim of Shashidharan (PW-2). As per

his claim, Prabhu had taken the names of Dilip, Manoj and Sunil

and one more person as the persons who had inflicted blows with

knife on Prabhu. The witness described Manoj (A-3) and Sunil (A-

2) as the friends of Dilip (A-1). The witness was candid enough

to tell that he did not know them personally and further claimed

that Prabhu had told him that they were Dilip's friends. His

statement was recorded on 17.05.2004 in the evening. He denied

and was contradicted on the question of Balan's wife accompanying

them. However, he asserted further that the wife of Balan was not

accompanying them. That, in our opinion, is an insignificant

contradiction. Other omissions were also proved in the evidence

but they are all insignificant omissions. Sushma was allegedly

present at the time when Balan came to her house and a suggestion

was given to him that they enquired from Sushma about the names of

Manoj and Sunil. He, of course, refuted this suggestion. He was

candid enough to admit that he did not know the names of fathers

and surnames of Manoj and Sunil. He had not even seen Manoj and

Sunil till then. He deposed in the Court that he had never gone

to the house of Dilip at any time nor talked to any of his family

members. There is a significant omission in his statement to the

effect that he admitted that he had not stated before the police
that Sushma's brother Dilip, Manoj, Sunil and one more person

inflicted blows with knife. He also asserted that he had not

stated that Prabhu had told him that Manoj and Sunil were Dilip's

friends. It was specifically suggested that Prabhu had never

disclosed him about Manoj and Sunil being Dilip's friends. It was

also suggested that Prabhu had not disclosed about the assault by

these three persons on Prabhu's family members. He obviously

refuted those suggestions.


16. From the evidence of these two important witnesses one of

whom was the author of the FIR what transpires is that while the

role played by Dilip has been reflected in the FIR, the roles

played by Manoj and Sunil are not to be seen as reflected in the

FIR. Even as regards the alleged disclosure by deceased Prabhu to

this witness in the Ambulance Van would depend upon the evidence

of Deepa and Indira who were also present in the same van.


17. When we see the evidence of Deepa, it is seen that she was

an injured witness. As per the evidence of PW-9, Dr. Mahendra

Chandak, Deepa had suffered as many as four contused lacerated

wounds over right side of upper and lower lip, left shoulder, left

lumber region with omentum protruding out and over left gluteal

region.


18. All the injuries and, more particularly, the injury Nos. 3

and 4 do appear to be serious injuries which have been reflected

in medical Exbt.57 and the injuries were stated to be possible

with sharp edged weapon like articles 6, 17 and 19. Therefore,

there can be no dispute about the presence of Deepa on the scene.
In her evidence Deepa asserted that she also knew the accused in

the case and then points out that she heard the knocking of the

door at about 1.15.-1.30 a.m. She then saw the door being opened

by the father after putting on the electric light and the further

fact that as soon as the door was opened accused Manoj, DIlip and

Sunil and one unknown person entered the house and they were all

armed with knife. She asserted that accused Dilip (A-1) and Manoj

(A-3) started stabbing her father. She was terrified and,

therefore, shouted and her brother Prabhu also came and when he

intervened accused Dilip (A-1) and Manoj (A-3) stabbed him also on

his stomach and chest. She then claims that she tried to

intervene to save her brother. Accused Dilip told accused Sunil

and the unknown person to take Prabhu outside and accordingly

Sunil and the other unknown person took Prabhu outside. She then

claimed that Dilip and Manoj then rushed towards her. However,

Bijit came out and caught hold of Manoj and urged him not to

assault Deepa and, therefore, accused Manoj started inflicting

blows with knife on the stomach and chest of Bijit also. It is

further stated that Dilip and Manoj rushed towards her and

inflicted knife blows on face, stomach and other parts of her

body. She shouted and it is at that time her mother Indira came

and she was also given blows by Manoj and Dilip because of which

her mother fell down. She then adds that afterwards accused Sunil

entered the room and deceased Abhayraj also entered the room and

Sunil inflicted the blow with knife on him and he ran away and was

followed by Sunil. At that point of time, according to her, Manoj

dropped the knife in his hands and then accused Dilip and Manoj
left. She also asserted that she had told the names of Manoj,

Dilip and Sunil and one more unknown person when she telephoned

her uncle Balan (PW-1). According to her, she heard her brother

Prabhu who was lying outside the front door calling `mummy mummy'.

She, thereafter became unconscious and regained her consciousness

only on the next day in Bhagwati Hospital where she was admitted

for about 1-1/2 months. A statement came to be recorded only on

18.05.2004. In her examination-in-chief, she has asserted that

she knew Manoj and accused Sunil as Dilip's friends. She was

extensively cross-examined as regards the topography of the place

and the topography of her house as also the role played by him.


19. Before we consider her evidence, it must be noted that

though she did not know the father's name of accused Manoj Paswan

and further though she did not know about his job, business or

service she asserted that prior to the marriage of Prabhu with

Sushma, accused Manoj had interacted with her on many occasions.

She also asserted that Manoj lived in the house of accused Dilip

only. She also asserted that after the marriage between Prabhu

and Sushma, she had not gone to the house of Dilip. She also

denied the suggestion that Dilip had never come to their house

after the marriage of Sushma. She asserted that accused Dilip had

come to their house and given threats. In her cross-examination,

it has come that Abhayraj was her next door neighbour and used to

exchange the messages between Prabhu and Sushma. She has also

spoken about the efforts on the part of Dilip's sister Kalpana and

Dilip's mother to persuade Sushma to come back to her house even

after the marriage.
20. Significantly enough, in her lengthy cross-examination,

very little is asked to her about the actual incident of assault.

This witness was the most natural witness and had also the

opportunity to watch the dastardly attack and she had withstood

her cross-examination extremely well insofar as the attack by

accused Dilip and Manoj was concerned. She was not injured till

her father, deceased brother Prabhu and Bijit were attacked by the

accused persons. A wild suggestion was thrown to her about the

fact that she had not seen the incident as she was also being

assaulted with her mother, which Deepa has, of course, refuted.

Again a wild suggestion was thrown at her that the unknown person

had disconnected the electric supply and the telephone connection

and thereafter, the incident took place. Again one fantastic

suggestion was given to her that on the night of incident her

brother and Abhayraj had gone to Shivaji Nagar and consumed liquor

and they quarreled there and Abhayraj was killed at Shivaji Nagar

and thereafter those unknown persons chased her brother up to

their house. Some omissions were shown in her evidence and she

admitted that she had not stated that all the four persons were

armed with knife. She also accepted that she had not given the

description of knife since she was not asked. Insofar as the

cross-examination at the instance of accused No.2, Sunil is

concerned, one very significant fact has come in her evidence to

the effect that she asserted that she had told the names of Sunil

and Manoj as Dilip's friends. She had accepted that such fact was

not written in her statement. She had also stated before the

police that accused Sunil and the unknown person took Prabhu out
of the room and she did not know as to why this fact is not

written in her statement before police. She stated that it was

not true to say that she made a false statement that Sunil was

Dilip's friend. She further stated it was not true to say that

she made a false statement that her father opened the door and

accused Sunil and others entered the house armed with knives. She

also stated that it was not true to say that she made a false

statement that accused Sunil and one unknown person took Prabhu

out of the room as stated.


21. Inspite of all these omissions which have been proved, we

are convinced that Deepa had seen all the three accused persons.

Not only that, she had also identified all the three accused

persons. She had no reason not to identify Dilip and Manoj who

were staying almost in her neighbourhood. Her assertion that

Manoj was residing in Dilip's house has come in her cross-

examination and has not been explained anywhere. As far as

accused No. 2, Sunil is concerned, it must be noted that a poor

attempt was made that Yogita who was her friend had also a brother

called Sunil. Merely because the witness had not stated that

Sunil and Manoj were the friends of Dilip, it cannot be said that

Sunil was not identified. Her claim that she knew all the accused

persons could not be demolished in spite of the lengthy cross-

examination.


22. Shri Raj, learned counsel tried to submit that she had not

identified the accused persons individually in the Court. The

argument is clearly incorrect. If she had claimed that she had
known all the accused persons that could have been challenged in

the cross-examination by asking her to identify the accused

persons. The defence backtracked on that issue and did not choose

to ask her to identify the accused individually. It was obvious

that if she very well knew Dilip and Manoj, which claim cannot be

disputed, the remaining third accused would be Sunil and she would

be in a position to identify him individually and probably that is

why the defence did not take the chance. The other two accused

were also related to Dilip, being father and mother of Dilip.

Therefore, it was obvious that the witness had meant only accused

No. 2 as Sunil. The evidence of the witness about the role played

by Dilip and Manoj, to begin with, and thereafter by Sunil in

assaulting Abhayraj has gone almost unchallenged. There is

practically nothing in the cross-examination and the whole cross-

examination was only on fringes. She also went to the extent of

telling the colours of the clothes which were worn by Bijit and

her father as also described the clothes worn by Prabhu. That

claim has also not been disputed nor demolished in cross-

examination. Very strangely, the cross-examination was directed

at the omissions of the claims which the witness had not made in

her examination-in-chief and on the basis of the answers given in

cross-examination which was not permissible. The whole evidence

of the witness is extremely natural and the witness has not tried

to unnecessarily implicate anybody else. She has not assigned any

role to the unknown person. She has also not exaggerated by

stating that Sunil also assaulted herself, Indira or Bijit. It is

only as regards Abhayraj that she has attributed the assault to
Sunil against him. Her whole evidence being the evidence of

injured eye-witness was wholly credible as has been held by the

Trial Court as well as the High Court. Even her evidence, insofar

as the assault on herself and her father and Bijit is concerned,

is supported by the medical evidence which evidence we will

consider in the latter part of the judgment. We, therefore,

cannot accept the contention raised by Shri Agrawal that Manoj was

not identified merely because his name did not appear specifically

in the FIR. We also reject the contention of Shri Raj to the

effect that Sunil was not identified at all by this witness. This

takes us to the evidence of Indira, another witness injured during

the assault.


23. Indira also asserted in her evidence that she knew the

accused persons including Sunil (accused No.2) and accused Manoj

(accused No.3). She was woken up owing to the shrieks of Deepa

and Krishnan. She saw that Deepa and her husband were in the

injured condition when she entered the TV room. It is significant

that at that time, accused Dilip and accused Manoj rushed towards

her and inflicted blows with knife over her neck, chest, face and

hands. She has also seen accused Sunil (accused No.2) entering

the room at that time which version completely tallies with the

version of Deepa. She also attributed the neck injury of Abhayraj

to accused Sunil. It is significant that she has not referred to

deceased Prabhu who had been dragged outside. She then asserted

that accused Sunil chased Abhayraj who ran outside the house from

the back door. She asserted that Prabhu disclosed to her that

Dilip (accused No.1), Manoj (accused No.3) and Sunil (accused
No.2) and one more person had assaulted him with knife. She has

also extensively been cross-examined. In her cross-examination,

she had rightly asserted that when she entered the room, Prabhu

was not present in the room and Deepa had also fallen down. She

was asked about Deepa Kakad who resided adjacent to their house.

There is an important omission about Prabhu's having stated to her

that it was accused Dilip, Manoj and Sunil who had assaulted him.

In spite of that omission, it cannot be forgotten that Indira is

an injured eye-witness herself and had seen assault on deceased

Abhayraj by Sunil (accused No.2). She has also seen Dilip and

Manoj. Her claim in the examination-in-chief that she knew

accused Dilip (accused No.1), Manoj (accused No.3) and Sunil

(accused No.2) and further claim that Sunil and Manoj were friends

of Dilip has not been demolished at all in the cross-examination.

In fact there does not appear to be any challenge to that claim.

It must be noted that both Deepa (PW-4) and Indira (PW-8) have not

spoken about any dying declaration having been made by Prabhu to

PW-2, Shashidharan while they were being taken to the Hospital,

probably because both Deepa and this witness, Indira were

unconscious while Deepa regained her consciousness only in the

Hospital. This witness was very seriously injured and regained

her consciousness after quite some time. The only cross-

examination on behalf of accused No.2 was that there were a few

persons with the name Sunil in their locality. She also had not

stated that Sunil was a friend of Dilip. In our opinion, these

omissions do not help the defence as there was no reason for these

witnesses to falsely implicate Sunil. There is really no strained
relationship of this witness with Sunil at least shown in their

cross-examination. Under these circumstances, the witnesses would

gain nothing by falsely implicating Sunil and Manoj. There is

absolutely no cross-examination in respect of the identity.

Therefore, the evidence of these two witnesses was rightly

believed by the Trial Court as also by the High Court. In our

opinion, this clear cut eye-witness account by Deepa and Indira is

enough to convict Dilip (accused No.1), Manoj (accused No.3) and

accused Sunil (accused No.2).


24. During the arguments before us Shri Raj gave a notice under

Section 294 (2), Cr.P.C. to the State counsel to admit the

document which is so-called dying declaration of Prabhu dated

17.05.2004. This dying declaration was a part of the charge-sheet

and the copy thereof was supplied to the accused persons. Very

strangely, this dying declaration was not brought forth on record

by the prosecution. The said dying declaration now having been

admitted by the Public Prosecutor can be read in evidence. It is

counter signed by Dr. S.S. Anakal (PW-5). It is also counter

signed by the Investigating Officer Kailash Bharve. It bears a

thumb mark. This was made by deceased Prabhu wherein it has been

stated that at about 1.30 a.m. Prabhu's father was assaulted by 2-

3 persons with knife and when he came out, he was also assaulted.

At that time accused Dilip and accused Manoj inflicted knife blows

on him and at that time two more persons entered the house and

started assaulting them. Further it is stated that while Dilip

and Manoj were trying to assault his mother, he tried to stop

them. He has also suggested that since he had married Dilip's
sister Sushma, Dilip, Manoj and their other associates had entered

their house and assaulted them. In fact when the matter was

pending before the High Court for confirmation, the accused filed

an application under Section 391 of the Code of Criminal Procedure

to take on record this dying declaration. We have seen that

application. In that application production of additional

evidence under Section 391, Cr.P.C. was suggested on the ground

that though such a dying declaration was given to Dr. S.S. Anakal

by deceased Prabhu, the same was not brought on record by the

prosecution and the same was suppressed from the defence before

the Trial Court. It was stated to be a vital omission on the part

of the prosecution and it was further claimed that it went to the

root of the matter as far as the culpability of accused Sunil is

concerned. It was also pointed out that in the said dying

declaration, the name of Sunil Yadav was not mentioned and that

due to inadvertence, the said dying declaration was not confronted

during the evidence of PW-5, Dr.S.S.Anakal. The application was

rejected by the High Court. Very strangely, this application was

opposed by the Public Prosecutor as also the learned counsel

appearing for Dilip (accused No.1) and Manoj (accused No.3). The

High Court observed in its order dated 01.09.2007 that though Dr.

Anakal was examined as witness and though the copy of this dying

declaration was furnished to all the accused persons during the

trial, no question was put with regard to Prabhu's dying

declaration by the counsel for accused No.2, Sunil before the

Trial Court. It was on these grounds that the High Court observed

that in view of the strong opposition by Dilip (accused No.1) and
Manoj (accused No.3) to the application, the High Court was not

inclined to exercise its discretion in favour of the appellant and

on that ground the application stood rejected.


25. To say the least, we are surprised by the order passed by

the High Court. In fact the proceedings before the High Court

were in the nature of an extended trial. The confirmational

proceedings are always the original proceedings. The High Court

was dealing with the accused who was facing death sentence.

Therefore, merely because no question was asked to Dr. S.S. Anakal

(PW-5), the document could not have been held back and an

opportunity was bound to be given by getting the document proved

if necessary by re-calling Dr. Anakal by the High Court itself.

The task of the Public Prosecutor is not only to secure the

conviction, he has a duty to the Court. He is an officer of the

Court and, therefore, in all fairness, firstly the document should

have been brought on record and secondly, even if Dr. Anakal who

recorded the dying declaration was not confronted with that dying

declaration, that opportunity could not have been denied before

the High Court since the proceedings before the High Court were in

the nature of original proceedings and an extended trial. We are

surprised that the Public Prosecutor opposed the application.

Fairness of the trial is the basic requirement in the criminal

law. We think that the Public Prosecutor ought not to have

opposed the production of the document. We, therefore, allowed

the production of the document.


26. In a reported judgment Rampal Pithwa Rahidas & Others. v.
State of Maharashtra [1994 Supp (2) SCC 73] somewhat similar

situation occurred where this Court reiterated the duty of the

investigating agency to act honestly and fairly. In that case a

communication-cum-application by an approver, before he was made

approver wherein he had claimed the bail on the ground that he

knew nothing about the offence and he was unnecessarily being

incarcerated, was not confronted to him at the time of trial. The

Court took the view that though the witness was not confronted

with that statement and in a strict sense it was not brought

before the Court, yet the same communication could be looked into

by the Courts. The Court also observed in paragraph 37 as under:


"The quality of a nation's civilization," it is said,
"can be largely measured by the methods it uses in the
enforcement of criminal law" and going by the manner in which
the investigating agency acted in this case causes concern to
us. In every civilized society the police force is invested
with the powers of investigation of the crime to secure
punishment for the criminal and it is in the interest of the
society that the investigating agency must act honestly and
fairly and not resort to fabricating false evidence or
creating false clues only with a view to secure conviction
because such acts shake the confidence of the common man not
only in the investigating agency but in the ultimate analysis
in the system of dispensation of criminal justice. Let no
guilty man go unpunished but let the end not justify the
means! The Courts must remain ever alive to this truism.
Proper results must be obtained by recourse to proper means -
otherwise it would be an invitation to anarchy."



27. Shri Raj urged that we should send back the matter for

further examination of Dr. S.S. Anakal and, if necessary, the

other witnesses like the Investigating Officer who has also

counter singed the said dying declaration. Shri Gaurav Agrawal

also urged that in case the dying declaration is sent back then

further opportunity will have to be given even to accused Nos. 1
and 3 to further cross-examine the witnesses as the dying

declaration clearly goes against at least accused Nos. 1 and 3.


28. Ordinarily, we would have sent back the matter. However,

we cannot ignore the fact that all the three accused persons are

facing death sentence awarded by the Trial Court and confirmed by

the High Court. We would not, therefore, increase the agonies of

the accused persons by sending back the matter to the High Court;

in stead, since accused No.1 and 3 did not have opportunity to

cross-examine the witnesses about the document, we will not

consider the documents against accused Nos. 1 and 3. Insofar as

accused No.2, Sunil is concerned, it is true that his name does

not appear in the said dying declaration but in our considered

opinion that would be of no consequence for the simple reason that

the evidence of the eye-witness completely fixes the criminal

liability on the part of accused No.2, Sunil. Therefore, even if

the said dying declaration is somewhat helpful to Sunil, that by

itself will not wipe out the evidence of the two eye-witnesses

whose evidence was credible as held by the Trial Court as well as

the Appellate Court.


29. Thus in our view, the conviction of all the three

appellants before us as ordered by the Sessions Judge and

confirmed by the High court is correct and we confirm the same.


30. This, however, takes us to the question of sentence. This

is a case where the death sentence has been ordered by the

Sessions Judge which has been confirmed by the High Court. We

must, at this juncture, take the overall circumstances while
taking into consideration the death sentence awarded by the Courts

below. As held in Machhi Singh v. State of Punjab [1983 (3) SCC

470] as also in Bachchan Singh v. State of Punjab [1980 (2) SCC

684], we must weigh the circumstances justifying the grant of

death sentence vis-`-vis the mitigating circumstances. The High

Court considered the following circumstances justifying the

imposition of death penalty"


"(a) Helpless victims

(b) Unarmed victims

(c) Victims woken from sleep at midnight

(d) Manner of inflicting injuries, 20-30 serious injuries on
death of the deceased, whereas even a single injury would
have been sufficient to kill, shows the barbarous attitude;

(e) Attacking ruthlessly six persons, Deepa and Indira were
let off presumed to be dead, seeking to wipe off the entire
family;

(f) Attack on every vital organ;

(g) Young boy Bijit was brutally assaulted;

(h) Not only Prabhu, even the messenger boy Abhayraj was
brutally assaulted;

(i) The time chosen was past midnite hence clearly
premeditated;

(j) Assault on lower caste based on caste hatred:

(k) Marriage took place on 29.10.2003 and the assault was on
17.05.2004 i.e. after a lapse of seven months. As Dilip was
totally opposed to the marriage, the above attack was highly
premeditated and not at the heat of moment.



31. The High Court relied on the judgment of Dhananjoy

Chatterjee @ Dhana v. State of West Bengal [2004 (9) SCC 751] and

quoted extensively therefrom. One other case Ronny alias Ronald

James Alwaris & Ors. v. State of Maharashtra [1998 (3) SCC 625]
was also relied on by the High Court. The High Court extensively

quoted from the judgment in Ediga Anamma v. State of Andhra

Pradesh [1974 (4 )SCC 443] and State of U.P. v. Dharmendra Singh &

Anr. [1999 (8) SCC 325] as also Lehna v. State of Haryana [2002

(3) SCC 76].


32. However, even a close scrutiny of the judgment does not

show any effort on the part of the High Court to consider the

mitigating circumstances, though such exercise has been done by

the Trial Court in paragraph 42 of its judgment. The mitigating

circumstances considered by the Sessions Court are:


"1) The age of the accused persons being between 20-25 years;
2) Their clean past, in the sense they were not involved in any
offence previously"




33. Shri Raj and Shri Gaurav Agrawal addressed us extensively

on the mitigating circumstances. As far as accused No.1, Dilip

and accused No.3 Manoj are concerned, the learned counsel first

pointed out that apart from the two circumstances considered by

the Sessions Judge, namely, the young age of the accused persons

and there being no criminal antecedents, there were number of

other mitigating circumstances which the Courts below had not

considered. It was submitted that accused No.1, Dilip must have

felt morally justified in attacking the family members due to the

fact that his younger sister had revolted against the family and

got married to Prabhu, a Keralite. Therefore, to preserve the

family honour, Dilip had taken the revenge of the so-called insult

of his family. It was also pointed out that since Manoj was the
resident of the same house, he also may have been persuaded to

join the crime as also Sunil who was all through described as the

friend of Dilip.


34. Learned counsel further argues that insofar as Manoj was

concerned, he apparently had no enmity though he might have felt

it necessary to display the loyalty to the family in whose house

he was living and it could have been only out of that, that the

murders took place. Learned counsel further argued that the

deaths of Bijit and Abhayraj were in reality not the intended

deaths but they became the victims of the circumstances since

Bijit tried to stop the assailants. He was not supposed to be

present there but his fate drew him in the house and he became the

prey of the murderous assault. Perhaps nothing would have

happened had he not come to the room. He not only came in the

room but also tried the stop the assailants from assaulting.


35. As regards Abhayraj, learned counsel pointed out that he

was not there in the beginning but he being the immediate

neighbour must have come attracted by the shrieks and lost his

life. According to the learned counsel, there is very little or

almost no evidence available as to how Abhayraj was killed and by

whom. The counsel pointed out that the only allegation was that

Sunil (A-2) dealt a blow on his neck and when he ran away he was

followed by Sunil and the unknown person. Learned counsel also

highlighted that the possibility of the said unknown person being

responsible for the death of Abhayraj and Prabhu could not be

ruled out since, as per the evidence of Deepa, Sunil and that
unknown person took Prabhu out and then it is not established as

to how many blows were dealt on Prabhu and, therefore, Sunil alone

could not be held to be responsible. There may be a substantive

contribution on the part of that unknown person to the crime, at

least for the murder of Prabhu and Abhayraj. Learned counsel

further highlighted the role of the unknown person and the fact

that the said unknown person remained a mysterious part of the

investigation and trial. Therefore, it was ultimately urged that

it could not be deemed to be an assault with a common intention to

wipe out the whole family as has been tried to be suggested by the

prosecution.


36. Learned counsel further submitted that it could not be said

that the accused could not be reformed, particularly, because

their antecedents were clean or at least the prosecution was

unable to point out any criminal activity in the past on the part

of the accused persons.


37. Shri Raj, appearing for accused No.2, Sunil also supported

these arguments and added that, in reality, Sunil could not be

attributed with the brutal attack. Undoubtedly, Sunil did not

assault either Krishnan Nochil or Prabhu, to begin with, he was

merely attributed assault on Prabhu after Prabhu was dragged out

for which there was no evidence as to whether it was he or other

unknown person who had given blows to him. As far as the

allegation regarding Abhayraj is concerned, learned counsel

pointed out that like Prabhu, there was no evidence available as

to how many blows had been given on Abhayraj's body and by whom.
Learned counsel pointed out that it was only one blow which was

given to Abhayraj. Learned counsel also urged that it must have

been because of the friendship between the other accused and Sunil

that Sunil had accompanied the accused persons but it could not be

said that Sunil also shared the common intention to wipe out the

whole family. In fact, Sunil did not act, to begin with, insofar

as the assaults on Krishnan and Prabhu were concerned. It was

further pointed out that Sunil was merely 19 years of age at the

time of incident.


38. The Trial Court has made some exercise in weighing the

mitigating circumstances though such conscious effort does not

seem to have been made by the High Court. In terms of the law

laid down in Bachan Singh's case (cited supra) as also in Machhi

Singh's case (cited supra) and number of subsequent decisions of

this Court thereafter, it would be now our task to weigh those

circumstances.


39. All murders are foul, however, the degree of brutality,

depravity and diabolic nature, differ in each case. It has been

held in the earlier decisions of this Court which we may not

repeat that the circumstance under which the murders took place,

differ from case to case and there cannot be a straightjacket

formula for deciding upon the circumstances under which the death

penalty is a must.


40. Insofar as the accused No. 1, Dilip is concerned, there can

be no doubt that he was the chief architect of the crime. There

can also be no doubt that he entered the house of the victims in
the dead of night. Obviously, the visit was not intended to be a

courtesy call. It was obvious that he had visited being duly

armed and in company of three other friends. What was then the

psychology of Dilip, accused No.1 and why did he wait for seven

months are the relevant questions which must attract our

attention.


41. Sushma was the younger sister of this accused. It is a

common experience that when the younger sister commits something

unusual and in this case it was an intercaste, intercommunity

marriage out of the secret love affair, then in the society it is

the elder brother who justifiably or otherwise is held responsible

for not stopping such affair. It is held as the family defeat.

At times, he has to suffer taunts and snide remarks even from the

persons who really have no business to poke their nose into the

affairs of the family. Dilip, therefore, must have been a prey of

the so-called insult which his younger sister had imposed upon his

family and that must have been in his mind for seven long months.

It has come in the evidence that even if the marriage was

performed with Prabhu, there were efforts made by the family

members of Dilip to bring Sushma back. It has come in evidence

that mother of Dilip tried to lure back Sushma and so did her

other married sister Kalpana who actually went on to meet Sushma

in her college. Those efforts paid no dividends. In stead,

Sushma kept on attending the college thereby openly mixing with

the society. This must have added insult to the injury felt by

the family members and more particularly, accused Dilip. Why did

he wait for seven months? The answer lies in the fact that Sushma
became pregnant and thus reached a point of no return. Till such

time as she became pregnant, there might have been some hopes in

the family to win her back but once she became pregnant, even that

distant hope faded away and, in our opinion, that is the reason

why this ghastly episode took place. As if all this was not

sufficient, Dilip himself must have had the feeling of being

cheated. It is not that Dilip did not know Prabhu who was living

only three houses away from his house. The secret love affair

which went on between Sushma and Prabhu for which Abhayraj acted

as a messenger must have raised the feeling of being cheated by

Prabhu. This was further aggravated because of the so-called

higher status of a Brahmin family on the part of Dilip and so-

called non-Brahmin status of Prabhu. It has come on record that

Sushma was moved to Andheri at the house of Shashidharan and this

ought to have added as a spark which resulted in tornado. Dilip

undoubtedly was a young person not even having crossed his 25

years of life and not having any criminal antecedent. If he

became the victim of his wrong but genuine caste considerations,

it would not justify the death sentence. The murders were the

outcome of social issue like a marriage with a person of so-called

lower caste. However, a time has come when we have to consider

these social issues as relevant, while considering the death

sentence in the circumstances as these. The caste is a concept

which grips a person before his birth and does not leave him even

after his death. The vicious grip of the caste, community,

religion, though totally unjustified, is a stark reality. The

psyche of the offender in the background of a social issue like an
inter-caste-community marriage, though wholly unjustified would

have to be considered in the peculiar circumstances of this case.


42. No doubt, the murder was brutal. However, it has been

pointed out by Shri Gaurav Agrawal as also Shri Raj that this was

not a diabolic murder nor had the murderers acted in depravity of

their minds by disfiguring the bodies. The incident must have

taken place barely within 10-15 minutes when they came, assaulted

the family members and left. True it is that the two ladies who

were assaulted were helpless and so were Krishnan and Prabhu. But

when we weigh all the circumstances, particularly, about the

mindset of Dilip, the cruel acts on the part of the accused would

not justify the death sentence. The disturbed mental feeling or

the constant feeling of injustice has been considered by this

Court as a mitigating circumstance in Om Prakash v. State of

Haryana [1999 (3) SCC 19] where the accused had committed the

murder of seven persons. That is also an indicator to the fact

that mere number of persons killed is not by itself a circumstance

justifying the death sentence. In fact in one other case reported

as Ram Pal v. State of U.P. [2003 (7) SCC 141] total 21 persons

were killed as the accused trapped them in a house and burnt the

house. Shri Karanjkar, appearing on behalf of the State very

strongly contended as against this, that in the present case while

four persons were killed, two helpless ladies were also assaulted

and very seriously injured and it is only because the accused

thought that those two ladies had died and left, that the lives of

Deepa and Indira were spared. Therefore, in the circumstances of

this case, we must lean in favour of the death sentence. In a
death sentence matter, it is not only the nature of the crime but

the background of the criminal, his psychology, his social

conditions and his mindset for committing the offence are also

relevant. No doubt in Ravji alias Ram Chandra v. State of

Rajasthan [1996 (2) SCC 175], this Court held as under:


"...The crimes had been committed with utmost cruelty and
brutality without any provocation, in a calculated manner. It is
the nature and gravity of the crime but not the criminal, which
are germane for consideration of appropriate punishment in a
criminal trial. The Court will be failing in its duty if
appropriate punishment is not awarded for a crime which has been
committed not only against the individual victim but also against
the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but it
should conform to and be consistent with the atrocity and
brutality with which the crime has been perpetrated, the enormity
of the crime warranting public abhorrence and it should "respond
to the society's cry for justice against the criminal"...."



43. It is also true that this case was followed in as many as

six cases where the death sentence was approved of. However, in

his judgment reported as Santosh Kumar Satishbhushan Bariyar v.

State of Maharashtra [JT 2009 (7) SC 248] Hon. Sinha, J. pointed

out that this judgment is per incuriam as the law laid down

therein is contrary to the law laid down in Bachan Singh's case

(cited supra) where the principle has fallen out to the effect

that the Court should not confine its consideration principally or

merely to the circumstances connected with the particular crime

but also give due consideration to the circumstances of the

criminal. It is because of this that we have ventured to consider

the mindset of accused No.1, Dilip and the vicious caste grip that

might have catapulted the crime committed by him. We would, thus,

follow Bachan Singh's case (cited supra) and the principles
therein rather than following the narrow approach given in Ravji's

case (cited supra).


44. Once we decide not to award the death sentence to accused

No.1, Dilip, the accused No.3, Manoj also deserves not to be given

death sentence. Even he is a person without any criminal

antecedents and he appears to have joined the company of Dilip

only out of his commitment as he was shown to be a resident of the

same house. We, therefore, do not think that even he deserves

death penalty. Accused No.2, Sunil has comparatively a lesser

role. Admittedly, he has not assaulted Krishnan or Prabhu, to

begin with. Who has assaulted Prabhu and Abhayraj is still not

clear, as it could also be that in the assaults the leading role

could have been taken by the unknown accused. In that view, he

also does not deserve the death sentence. The question is then

how are these accused persons to be dealt with. Ordinarily, they

would be liable to be awarded the life imprisonment.


45. However, in the peculiar circumstances of this case, mere

life imprisonment which is capable of resulting into 20 years of

imprisonment or 14 years of actual imprisonment may not be

adequate punishment for these accused persons. Considering the

overall circumstances, we feel that accused No.1, Dilip and

accused No.3, Manoj who assaulted Krishnan, Prabhu and the two

helpless ladies would deserve the life imprisonment. But we

direct that they shall not be released unless they complete 25

years of actual imprisonment. In case of Sunil, however, since he

had not assaulted the helpless ladies nor had he taken part in the
assault on Krishnan, he deserves the life imprisonment in the

ordinary sense. He shall have to undergo the 20 years of actual

punishment. Such a course has been held to be permissible in Haru

Ghosh v. State of West Bengal [JT 2009 (11) SC 240] pronounced by

this Bench, authored by V.S.Sirpurkar, J. This view was taken on

the basis of the law laid down in Swami Shradhanand @ Murali

Manohar Mishra v. State of Karnataka [JT 2008 (8) SC 27] where

this Court after considering several cases held that such a course

was permissible. We accordingly dismiss these appeals, however,

modifying the sentences as shown above. The appeals are disposed

off accordingly.




.............................J.
[V.S. SIRPURKAR]



........................
.....J.
[DEEPAK VERMA]
NEW DELHI
December 10, 2009.