# State of U.P v. Deen Dayal Tiwari

- **Citation:** (2022) 5 ILRA 1290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-09
- **Case number:** Capital Cases No. 1 of 2014
- **Bench:** Ramesh Sinha, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-deen-dayal-tiwari-48488
- **Pages:** 34

## Headnote

A. The testimony of an eye-witness merely
because he happens to be a relative of the
deceased cannot be discarded as close relatives
would be the last one to screen out the real
culprit and implicate innocent person.

B. If the prosecution case is established by the
evidence adduced, any failure or omission on
the part of the Investigating Officer cannot
render the case of the prosecution doubtful

C. Prosecution evidence may suffer from
inconsistencies here and discrepancies there,
but that is a shortcoming from which no criminal
case is free. The main thing to be seen is
whether those inconsistencies go to the root of
the matter or pertain to insignificant aspects
thereof.

D. Civil Law - Evidence Act, 1872 - Section
106 - Will apply to those cases where the
prosecution has succeeded in establishing the
facts from which a reasonable inference can be
drawn regarding the existence of certain other
facts which are within the special knowledge of
the accused. When the accused fails to offer
proper explanation about the existence of said
other facts, the Court can always draw an
appropriate inference.

E. When a case is resting on circumstantial
evidence, if the accused fails to offer a
reasonable explanation in discharge of burden
placed on him by virtue of Section 106 of the
Evidence Act, such a failure may provide an
additional link to the chain of circumstances. In
a case governed by circumstantial evidence, if
the chain of circumstances which is required to
be established by the prosecution is not
5 All. State of U.P. Vs. Deen Dayal Tiwari
1291
established, the failure of the accused to
discharge the burden under Section 106 of the
Evidence Act is not relevant at all. When the
chain is not complete, falsity of the defence is
no ground to convict the accused.

F. If Court finds that the offence is of an
exceptionally depraved and heinous character
and constitutes, on account of its design and
the manner of its execution, a source of grave
danger to the society at large, Court may
impose death sentence.

G. Where an accused does not act on any spur
of the momentary provocation and indulges
himself in a deliberately planned crime and
meticulously executes it, the death sentence
may be the most appropriate punishment for
such a ghastly crime. The death sentence may
be warranted where victims are innocent
children and helpless women. Thus, in case the
crime is committed in a most cruel and inhuman
manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner,
where his act affects the entire moral fibre of
the society, death sentence should be awarded.
Capital
case
confirmed
and
criminal
appeal dismissed. (E-12)
List of Cases cited:-

## Text

_Characters 0–39,842 of 117,075. This is a partial read: ask again with offset=39842 for what follows._

1290 INDIAN LAW REPORTS ALLAHABAD SERIES
with interest thereon at the rate of nine per
centum per annum as provided in Order
XV Rule 5 of CPC and second part is, the
amount either admitted or not to be
deposited throughout the continuation of
suit proceeding from month to month basis.
About the first part, any amount deposited
by any mode in accordance with law or
deposited in proceeding under Section
30(1) of U.P. Act No. 13 of 1972 can be
adjusted, but so far as second part is
concerned, any such amount deposited
under Section 30(1) of U.P. Act No. 13 of
1972, cannot be adjusted. It is always
required on the part of defendant to deposit
the same before the Court, where the suit is
instituted.

15. So far as present case is
concerned, there is no dispute of fact and it
is admitted position that the revisionist -
defendant has never deposited the amount,
so due on month to month basis before the
Court where the suit was instituted after
first date of hearing. Therefore, in light of
provisions of Order XV Rule 5 of CPC,
ratio of law laid down by the Courts as well
as discussion made herein above, no relief
can be granted to the revisionist.

16. Accordingly, revision lacks merit
and is dismissed.

17. No order as to costs.
----------
(2022)05ILR A1290
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Capital Cases No. 1 of 2014
connected with
Criminal Appeal No. 1776 of 2016

State of U.P. ...Appellant
Versus
Deen Dayal Tiwari ...Respondent

Counsel for the Appellant:
Govt. Advocate, Jyotindra Misra (Amicus),
Kapil Misra

Counsel for the Respondent:

A. The testimony of an eye-witness merely
because he happens to be a relative of the
deceased cannot be discarded as close relatives
would be the last one to screen out the real
culprit and implicate innocent person.

B. If the prosecution case is established by the
evidence adduced, any failure or omission on
the part of the Investigating Officer cannot
render the case of the prosecution doubtful

C. Prosecution evidence may suffer from
inconsistencies here and discrepancies there,
but that is a shortcoming from which no criminal
case is free. The main thing to be seen is
whether those inconsistencies go to the root of
the matter or pertain to insignificant aspects
thereof.

D. Civil Law - Evidence Act, 1872 - Section
106 - Will apply to those cases where the
prosecution has succeeded in establishing the
facts from which a reasonable inference can be
drawn regarding the existence of certain other
facts which are within the special knowledge of
the accused. When the accused fails to offer
proper explanation about the existence of said
other facts, the Court can always draw an
appropriate inference.

E. When a case is resting on circumstantial
evidence, if the accused fails to offer a
reasonable explanation in discharge of burden
placed on him by virtue of Section 106 of the
Evidence Act, such a failure may provide an
additional link to the chain of circumstances. In
a case governed by circumstantial evidence, if
the chain of circumstances which is required to
be established by the prosecution is not
5 All. State of U.P. Vs. Deen Dayal Tiwari
1291
established, the failure of the accused to
discharge the burden under Section 106 of the
Evidence Act is not relevant at all. When the
chain is not complete, falsity of the defence is
no ground to convict the accused.

F. If Court finds that the offence is of an
exceptionally depraved and heinous character
and constitutes, on account of its design and
the manner of its execution, a source of grave
danger to the society at large, Court may
impose death sentence.

G. Where an accused does not act on any spur
of the momentary provocation and indulges
himself in a deliberately planned crime and
meticulously executes it, the death sentence
may be the most appropriate punishment for
such a ghastly crime. The death sentence may
be warranted where victims are innocent
children and helpless women. Thus, in case the
crime is committed in a most cruel and inhuman
manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner,
where his act affects the entire moral fibre of
the society, death sentence should be awarded.
Capital
case
confirmed
and
criminal
appeal dismissed. (E-12)
List of Cases cited:-

1. Machhi Singh & ors. Vs St. of Pun. : (1983)
SCC 470

2. Dharnidhar Vs St. of U.P. (2010) 7 SCC page
759

3. Amar Singh Vs Balwinder Singh, AIR 2003 SC
1164

4. Sambu Das Vs St. of Assam, AIR 2010 SC
3300

5. St. of U.P. Vs Krishna Master & ors. : 2010
Cri. L.J. 3889 (SC)

6. Sampath Kumar Vs Inspector of Police,
Krishnagiri : (2012) 4 SCC 124

7. Brajendra Singh Vs St. of M.P. (2012) 4 SCC
289

8. Bachan Singh Vs St. of Pun. (1980) 2 SCC
684

9. Furman Vs Georgia, (1972) SCC On-Line US
SC 171

10. Haresh Mohandas Rajput Vs St. of Mah.:
(2011) 12 SCC 56

11. Ramnaresh & others Vs St. of Chhattisgarh
reported in (2012) 4 SCC 257

12. Dharam Deo Yadav Vs St. of U.P. reported in
(2014) 5 SCC 509

13. Kalu Khan Vs St. of Raj. reported in (2015)
16 SCC 492
(Delivered by Hon'ble Ramesh Sinha, J.)

1. The accused, Deen Dayal Tiwari,
was tried by the learned Additional District
& Sessions Judge, Court No.5, Faizabad in
Sessions Trial No. 24 of 2013 : State Vs.
Deen Dayal Tiwari, arising out of Case
Crime No. 746 of 2011, under Section 302
I.P.C., Police Station Pura Kalandar, district
Faizabad.

2. Vide judgment and order dated
29.01.2014/30.01.2014,
the
learned
Additional District & Sessions Judge,
Court No.5, Faizabad, convicted the
appellant-Deen Dayal Tiwari under Section
302 I.P.C. and sentenced him to be hanged
to death till he is dead and with fine of
Rs.50,000/-.

3. Aggrieved by the aforesaid
judgment
and
order
dated
29.01.2014/30.01.2014, convict/appellant,
Deen Dayal Tiwari, preferred Criminal
Appeal No. 1776 of 2016 : Deen Dayal
Tiwari Vs. State of U.P.

4. Capital Case No. 1 of 2014 arises
out of the Reference made by the learned
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
trial Court under Section 366 (1) of the
Code of Criminal Procedure, 1973 to this
Court for confirmation of the death
sentence of convict Deen Dayal Tiwari.

5. Since the above-captioned capital
sentence reference and appeal arise out of a
common factual matrix and impugned
judgment
and
order
dated
29.01.2014/30.01.2014 passed by the trial
Court, we are disposing of the aforesaid
reference and appeal by this common
judgment.

(B) FACTS

6. The informant P.W.1-Dinanath
Tiwari had lodged a written report (Ext.
Ka.1) on 12.11.2011, at 06:10 a.m., in
police station Pura Kalandar, district
Faizabad,
alleging
therein
that
on
11/12.11.2011, at about 02:30 a.m., on
hearing the noise "cpkvks&cpkvks" (savesave) of the wife and daughters of his elder
brother
Deen
Dayal
Tiwari
(convict/appellant), he (P.W.1) and his wife
Smt. Suneeta alias Anita (P.W.2) came out
of their house and reached to the house of
Deen Dayal Tiwari (convict/appellant).
Thereafter, they asked Deen Dayal Tiwari
(convict/appellant) to open the door but the
door was not opened. Then, they threatened
to break the door. After that Deen Dayal
Tiwari (convict/appellant) came out of the
house armed with blood stained axe and
attacked upon them also and asked them to
leave from there and said that he had cut
down his wife and four daughters; and he
would also kill all of them. On being cried,
villagers gathered there, then, they all
controlled his elder brother Deen Dayal
Tiwari (convict/appellant) and went inside
the room, where they saw that Deen Dayal
Tiwari (convict/appellant) had cut down all
his four daughters and his wife.

7. The informant P.W.1-Dinanath
Tiwari got scribed the aforesaid written
report (Ext. Ka.1) from a person of his
village and after affixing signature thereon,
proceeded to lodge the same to police
station Pura Kalander, District Faiazabad
and lodged it. A perusal of the chik FIR
shows that the distance between the place
of incident and Police Station Purakalander
was 15 kilometer. A perusal of the chik FIR
also shows that on the basis of written
report of P.W.1-Dinanath Tiwari, Case
Crime No. 748 of 2011, under Section 302
I.P.C., Police Station Pura Kalander, district
Faizabad
was
registered
against
convict/appellant, Deen Dayal Tiwari.

8. The investigation of the case was
conducted by P.W.5-Ajay Prakash Mishra,
who, in his examination-in-chief, had
deposed before the trial Court that on
12.11.2011, he was posted as Station
Officer at police station Pura Kalandar,
district Faizabad. On the same day, he got
information that the incident had taken
place in his area. After getting the
investigation, he made entry of chik and the
F.I.R. in the case diary and recorded the
statement of informant Dinanath Tiwari
(P.W.1). He reached the spot in the morning
and
saw
that
Deen
Dayal
Tiwari
(convict/appellant) was present inside the
room in his house after closing the door
from inside; the door was bolted from
outside also; and many people of the
village and nearby places were present
there. One brick of the eastern wall of the
room was out from which he peeped and
saw inside the room that Deen Dayal
Tiwari
(convict/appellant)
armed
with
blood stained ''axe' was present and was
walking inside the room. With the help of
people present, namely, Visheshwar Nath
Mishra (P.W.3), Vishun Tiwari, opened the
door of the room by pushing it. The
5 All. State of U.P. Vs. Deen Dayal Tiwari
1293
convict/appellant
Deen
Dayal
Tiwari,
thereafter, looked behind and wanted to run
away but he was caught with the help of the
police. After recovering one ''axe' from his
right hand, the same was taken by the
police in its custody. The stain of blood in
the iron part of the axe was present and
fresh blood in the csV (wooden portion of
the axe) was also present. He prepared
memo of the same separately under his
handwriting and signature. When he asked
the
name
and
address
of
the
convict/appellant, he told his name Deen
Dayal Tiwari (convict/appellant) son of
Late Laxman Prasad Tiwari. Thereafter, he
arrested the convict/appellant and handed
over by him to the police and instructed to
keep him under safe custody. He further
deposed that on the pointing out of the
convict/appellant,
two
knives
were
recovered from the room. After that, he
took possession of two knives ( one green
belt and other yellow metal red green
dotted) and one axe and thereafter, he
sealed it and prepared memo of the same
under his handwriting and signature (Ext.
Ka.7). After that, he took possession from
the spot of blood stained and plain cloth
and bed, recovery memo (Ext. Ka.8) of
which, was prepared by him in the presence
of witnesses. He, thereafter, collected blood
stained soil and plain soil and recovered
one sweater and lungi etc. from the spot
and thereafter, he sealed it and prepared a
recovery memo of it and proved it as Ext.
Ka.9 and Ext. Ka. 10 before the trial Court.
He further stated that on the pointing out of
the informant (P.W.1), he prepared the site
plan (Ext. Ka.11) under his handwriting
and signature. After that, he recorded the
statement
of
Deen
Dayal
Tiwari
(convict/appellant), who confessed the
crime and stated that " his wife was of a
bad character and had illicit relation with
someone of the village, due to which his
relation with his wife became strained, on
account of which, on 11.11.2011 in the
evening itself, he had decided that tonight
itself he would kill his wife, therefore, he
had kept the ''knife' and ''axe' in the
evening itself and at around 3 o'clock in the
night, when his wife and his daughters were
sleeping, he firstly hit the head of his wife
Siallali with axe, due to which she
screamed, then, he stabbed her with knife.
After that, his daughters woke up and came
to save their mother, then, he killed them in
turn. Among their daughters, he firstly
killed Mani Tiwari, then Riya, then
Guddan/Gunjan, then Kumari Mahima with
a ''knife' and ''axe'. On hue and cry of cpkvks
cpkvks (save save) of his daughters, people
of his village and members his family had
gathered
and
these
peoples
were
threatening to break the door and asked
him to come out of the room, therefore, he
had closed the door inside of his room." He
further deposed that on the same day i.e. on
12.11.11 on his dictation, S.I. R.K. Tiwari
and Manushekhar Singh had prepared the
''panchayatnama' of all the dead bodies
lying on the spot inside the room viz.
Siallali, Mani Tiwari aged 11 years, Riya
Tiwari aged 8 years, Guddan Tiwari aged 6
years and Mahima Tiwari aged 4 years
(Ext. Ka.12, Ext. Ka.13, Ext. Ka.14, Ext.
Ka.15 and Ext. Ka.16). At the same time,
the forms related to the dead bodies, photo
lash, challan lash, sample seal, Form-13,
letter to RI, letter to CMO etc. were
prepared by him under his writing and
signature (Ext. Ka. 17 to Ext. Ka. 36). After
that, recovered knives, axe and clothes
were sent to Forensic Science Laboratory,
Lucknow through CJM Faizabad, which is
marked as Ext. Ka. 37.

P.W.5 Sri Ajay Prakash Mishra
had further deposed that on 13.11.2011, he
recorded the statement of eye-witness Anita
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
(P.W.2), Vishnu Tiwari and witnesses of
''panchayatnama'.
On
14.11.11,
the
''panchayatnama' was copied in the CD. On
01.12.2011, he recorded the statement of
Ashok Tiwari, Ugrasen, Anil Chaurasia and
Vishesharnath
Mishr
(P.W.3).
On
02.12.2011, he made entry of all finger
impressions taken from the spot in CD. On
13.12.11, he recorded the statement of
witness Sanjay Chaurasia and Kashiram
Kori and after completion of investigation,
he filed charge-sheet (Ext. Ka. 38) against
convict/appellant Deendayal Tiwari before
the court concerned under his handwriting
and signature.

P.W.5 Sri Ajay Prakash Mishra
had further deposed that Constable Durga
Prasad Mishra was working with him at
police station Pura Kalander, district
Faizabad, whose handwriting and signature
are familiar to him and probably he is
posted
in
Ballia
district.
Constable
Moharrir
Durga
Prasad
Mishra
had
prepared chik no. 211/11 in his handwriting
and signature (Ext. Ka. 39) and endorsed its
entry in GD as report no. 7. He proved the
carbon copy of GD (Ext. Ka. 40). In report
no.16 of G.D., he endorsed his return to the
police station and recovery of ''knife', ''axe'
and 7 bundles of cloth marked as Ext. Ka.
41.

In cross-examination, P.W.5 Sri
Ajay Prakash Mishra had deposed that he
had reached the spot in the morning but he
did not remember the time. There was no
sunrise. He did not remember the time
when he left for place of occurrence from
the police station. The information about
this case was given by the informant
Dinanath Tiwari (P.W.1). He did not
remember the time of arrival of P.W.1 at the
police station. As soon as the information
was received from informant (P.W.1), he
left from the police station. The FIR was
lodged in his presence. He did not
remember how much time it took to write
the FIR. He started from police station to
the place of the incident at 6.10 a.m. Along
with him, S.I. R.K. Tiwari, Constable K.K.
Singh, Constable Istiaq, Constable Harihar
Tiwari went on a Jeep to the place of
incident. The statement of the informant
(P.W.1) was recorded on the same day at
the police station itself. The informant
(P.W.1) had reached the spot by his own
conveyance. The place of the incident is 14
Km. from the police station. When he
reached to the place of occurrence, the
outer door of the house of Deen Dayal
(convict/appellant) was opened. There were
two rooms, one outside and one inside. The
flVduh (iron grill) fixed in the inner door
was broken due to push but it was not taken
into possession by the police. He denied the
suggestion that there was no iron grill
inside nor it was broken.

P.W.5, in cross-examination, had
further deposed that the body of the wife of
the convict/appellant, namely, Siyallali was
lying on the cot adjacent to the western
wall and the bodies of four daughters were
lying on the floor of the room. The width of
the room was five steps and the length was
seven steps in which the corpses were
lying. One axe was recovered from the
possession of the convict/appellant and on
his
pointing
out,
two
knives
were
recovered. Both the informant (P.W.1) and
the convict/appellant are real brothers. The
gallery was covered with bricks and it was
not cemented and when he reached there,
the bricks were fallen. He deposed that
there
is
no
signature
of
the
convict/appellant on the seizure memo of
weapon
of
assault.
He
denied
the
suggestion that no murder weapon was
recovered from the convict/appellant and
he had made fake memo. He deposed that
first of all, he did the ''panchayatnama' of
Siallali which started at 6:40 a.m. and
5 All. State of U.P. Vs. Deen Dayal Tiwari
1295
ended at 7:25 a.m. The distance from the
place of the incident to the police station
was written in the ''panchayatnama' about
10 km. After that the ''panchayatnama' of
Km. Mahima was conducted from 7.30
a.m. to 8.00 a.m. The ''panchayatnama' of
all
was
over
at
11:30
a.m.
The
panchayatnama started only after the body
was found. The convict/appellant was
wearing lungi, vest and sweater. He
inspected the place of the incident before
the ''panchayatnama'. The witnesses in the
''panchayatnama'
were
Vishesharnath
Mishra (P.W.3), Vishnu Tiwari, Sanjay
Chaurasia, Umashankar Mishra, Kashiram
Kori. He also denied the suggestion that
apart from axe, knife, there was no injury
of stick etc. He also denied the suggestion
that all the three weapons were not used by
the same person and number of attackers
were larger one. He also denied the
suggestion that all proceedings was done
by him on one day and recorded the
statement of Vishesharnath (P.W.3) at the
place of the incident on 01.12.2011. He
further deposed that he recorded the
statement of the wife of the informant at
the place of occurrence on 13.11.2011 but
he could not remember the time. He denied
the suggestion that the informant had not
gone to the police station and informant
was unconscious at the place of occurrence.
He also denied the suggestion that
convict/appellant Deen Dayal came to the
place of the incident from his khaliyan
(barn). He also denied the suggestion that
accused was shouting that the enemies
killed his daughters and wife. He further
deposed that at 11.30 a.m., he went to the
police station after sending the dead bodies
for post-mortem. He came to the police
station at 01.00 p.m. He further deposed
that when he reached the spot, he inspected
the
place
of
the
incident,
did
''panchayatnama', and sent the body for
post-mortem.
Before
starting
the
''panchayatnama', he prepared all the
memos in his handwriting and signature. It
would have taken an hour to make all the
five memos. He denied the suggestion that
no recovery was made from the convict/
appellant and under the pressure of the
villagers, they were falsely implicated the
convict/appellant.

9. The autopsy on the dead bodies of
Smt. Siyallali wife of convict/appellant
Deen Dayal Tiwari aged about 36 years and
Km. Mani aged about 11 years, Km. Riya
aged about 8 years, Guddan aged about 6
years Mahima
aged about 4 years,
daughters of convict/appellant Deen Dayal
Tiwari were conducted on 12.11.2011, at
01:00 p.m., 02:30 p.m., 02:30 p.m., 02:00
p.m and 01:30 p.m., respectively, by Dr.
S.K. Shukla (P.W.4), who, found on their
persons ante-mortem injuries, enumerated
hereinafter :--

"Ante-mortem injuries of Smt.
Siyallali wife of convict/appellant Deen
Dayal Tewari, aged about 36 years :

1. Incised wound of Lt. side of
forehead 2 cm above to Lt. upper eyebrow.
Size .5 x 1.0 x bone deep.

2. L/w of Lt. eye orbit just above to
Lt. upper eyelid. Size 6 x 2.0 cm x bone deep.

3. Incised wound of left side of
face 2 cm below to Lt. down eyelid. Size 2.0
x 1.0 x bone deep.

4. Multiple L/w of Rt. side of face
including forehead, 3 c.m. medwal to Rt. ear.
Size of longest bone 8.0 x 4.0 x bone deep
and size of smallest one 2.0 x 1.0 cm x bone
deep.

5. L/w of Lt. shoulder at mid of
clavicle. Size 3 x 2.0 x bone deep.

6. Multiple L/w of Lt. side of
neck. Size of largest one 3.0 x 1.5 x bone
deep.
1296 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Multiple CRUSH injury of
abdomen in epigastric region, including
chest cage. Size of longest one 15 x 5.0 cm
x bone deep & size of smallest one (paper
torn) 1.0 cm.

Ante-mortem injuries of Km.
Mani daughter of convict/appellant Deen
Dayal Tiwari aged about 11 years:

1. L/w of skull 3 cm above to Lt.
ear. Size 5.0 x 5.0 x bone deep.

2. Contusion of forehead at
frontal region. Size 7.0 x 5.0 cm.

3. Left section of neck. Size 10 x
4.0 x bone deep.

4. Incised wound of mandible.
Size 4.0 x 1.0 x bone deep.

Ante-mortem
injuries
of
Guddan daughter of convict/appellant
Deen Dayal Tiwari aged about 6 years :

1. CRUSH injury of Lt. side of
skull 2 cm above to Lt. ear. Size 7 x 6.0 x
bone deep.

2. Cut Section of Neck at anterior
aspect. Size of 8 x 3.0 cm x bone deep.

3. Multiple penetrating wound of
Abdomen. Size of longest one 8.0 x 5.0 cm
& smallest one 4.0 x 3.0 cm.

Ante-mortem injuries of Km.
Riya daughter of convict/appellant Deen
Dayal Tiwari aged about 8 years :

1. L/w of Lt. side of face 2 cm
medial Lt. ear. Size 4.0 x 2.0 x bone deep.

2. Left section of neck. Size 6.0 x
9.0 x bone deep.

3. Incised wound of chest at Lt.
side 3 cm above to epigastric region. Size
2.0 x 1.0 cm.

4. Multiple L/w of Rt. leg. Size of
longest one 3.0 x 1.5 cm and smallest 1.5 x
1.0 cm

Ante-mortem injuries of Km.
Mahima daughter of convict/appellant
Deen Dayal Tiwari aged about 4 years

1. L/w of skull 2 cm above to Lt.
upper eyebrow. Size 4.0 x 3.0 x bone deep.

2. L/w of occipital region of
skull. Size 12 x 5.0 x Bone deep."

The cause of death spelt out in
the autopsy reports of the deceased Smt.
Siyallali, Km. Mani, Km. Riya, Guddan
and Mahima was shock and hemorrhage as
a result of ante-mortem injuries.

10. It is significant to mention that in
his deposition in the trial Court, Dr. S.K.
Shukla (P.W. 4) has reiterated the said
cause of death and also stated therein that
on 12.11.2011, he was posted as Anesthetic
in District Woman Hospital, Faizabad. On
the same day, at 01:00 p.m., he conducted
the postmortem of the deadbody of
deceased Siyallali wife of convict/appellant
Deen Dayal Tiwari, which was sent by S.O.
Purakalander, district Faizabad in a sealed
condition through Constable Ram Niwas
and Lalji Pal, Police Station Pura Kalander,
District Faizabad along with ten other
enclosures. He deposed that the deceased
Siyallali was aged about 36 years; the
deadbody was about half a day old;
stiffness was present in her body both,
above and below, in her hands and feet
after death; mouth was open; and both the
eyes were open. He further deposed that on
internal examination of deadbody of
deceased Siyallali, he found that head, neck
and skull were as described in the antemortem injuries. The membranes of brain
and brain were torn; blood clot was present
inside the brain; the chambers of both sides
of the heart were empty, meaning thereby
blood was oozing out; and the upper
abdominal membrane was damaged. He
also found that the stomach was empty;
foods and gases were present in the small
intestine; faces and gas were present in the
large intestine; liver was pale; gall bladder
was full; the bladder was half full; and
uterus was empty. He deposed that all the
aforesaid injuries were half day old and it
5 All. State of U.P. Vs. Deen Dayal Tiwari
1297
seemed to be attributable by ''axe' and
''knife'. All the injuries could be attributable
on 11.11.2011 at about 2:30-3:00 a.m.

Dr. S.K. Shukla (P.W. 4) had
further deposed that on the same day
(12.11.2011), at 1:30 p.m., he conducted
postmortem of the deadbody of Km.
Mahima daughter of convict/appellant
Deen Dayal Tiwari, whose age was about 4
years. Her death could be caused about half
a day. Her body was average height;
stiffness was present after death on the
upper and lower parts of her body; her
mouth was open; and both eyes of her were
closed. On internal examination of the
deceased Km. Mahima, he found that
injuries on head was as described in the
ante-mortem injuries. Her membranes and
brain
were
torn;
blood
clot
had
accumulated; there was no internal injury
to the chest; the chambers on both sides of
the heart were empty, meaning thereby
blood was oozing out; teeth in the mouth
was 11/11; the stomach was empty; there
was food and gas in the small intestine;
stool and gas were present in the large
intestine; the liver became yellow; the gall
bladder was full; the bladder was empty;
and there was no irregularity or deficiency
in the genital and it was normal. He further
deposed that these injuries could be
attributable by ''axe' or ''danda' (stick) and it
could be caused on 11.11.2011 at about
2:30-3:00 a.m.

Dr. S.K. Shukla (P.W. 4) had
further deposed that on the same day
(12.11.2011), at about 2:30 p.m., he
conducted the postmortem of the corpse of
deceased Km. Mani Tiwari daughter of
convict/appellant
Deen
Dayal
Tiwari,
whose age was about 11 years. Her
deadbody was half a day old; the deceased
was of average height; the post-death
stiffness was present in both the upper and
lower portion; her mouth was half open;
and both her eyes were closed. On her
internal examination, he found that the
membranes of the brain and brain was torn;
clot of blood was present in the brain;
blood from all injuries of the heart was
oozing out; teeth was 12/13; and the uterus
was empty. He further deposed that all the
above injuries seemed to have been
attributed by some sharp edged weapon and
it could be caused on 11.11.2011 between
2:00-2:30 a.m.

Dr. S.K. Shukla (P.W. 4) had
further deposed that on the same day
(12.11.2011), at about 3:00 p.m., he
conducted the postmortem of the deadbody
of the deceased Km. Riya, daughter of
convict/appellant Deen Dayal Tiwari whose
average age was 8 years. The body of her
was half a day old; stiffness was present in
both parts of the body after death; teeth was
13 / 13; mouth was half open; and eyes
were closed. On her internal examination,
he found that the membranes of the brain
were torn; blood clot was found inside the
brain; heart was bleeding; the stomach was
empty; the uterus was empty; food was
present in the small intestine and fecal gas
was present in the large intestine; and
everything else was found to be normal of
the deceased. He further deposed that all
these injuries could be attributable by ''axe'
and ''knife' and these injuries could be
caused on the night of 11.11.11 at 2.30 p.m.

P.W.4 had further deposed that on
the same day, at 02:00 p.m., he conducted
the post-mortem of the deadbody of
deceased Kumari Guddan daughter of
convict/appellant Deen Dayal Tiwari at 2
p.m. whose age is about 6 years. Her body
was of average; post-death stiffness was
present in both parts of the body; and her
mouth and eyes were closed. On internal
examination, he found that the upper
membranes of the brain as well as brain
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
were torn; blood clot was present inside the
braind; both the lungs turned yellow; heart
was empty; the stomach was empty; food
and gas inside the small intestine and feces
and gas from the large intestine were
present; the liver turned yellow; the
gallbladder was full; the bladder was
empty; and genital was normal.

P.W.4 had further deposed that all
the injuries of the deceased seems to have
inflicted with a sharp edged weapon like
''axe' and ''knife', and almost all these
injuries were about half a day old before
the death. All these injuries appear to have
caused at 2.30 am on 11.11.2011. He
proved the post-mortem report of the
deceased (Ext. Ka. 2, Ext. Ka.3, Ext. Ka.4,
Ext. Ka.5 and Ext. Ka. 6).

P.W.4-Dr. S.K. Shukla, in crossexamination, had deposed that post-death
claudication begins within 12 hours after
the deceased dies and in the next 12 hours
after death, stiffness occurs in the whole
body. Hence, in 24 hours, the stiffness
spreads throughout the body after death.
After 24 hours, this stiffness starts to
dissipate slowly from the body after death.
He deposed that he gave the statement of
the time of injuries of the deceased as 2:303:00 am in the morning. In this, there can
be a gap of four hours back and forth
because there is a difference of temperature
(winter heat). In this way, the injuries to the
deceased could be attributable 11 O'clock
or 12 O'clock in the night of 11.11.2011.
There are seven cuts and stab wounds
found on the body of the deceased, which is
possible to come by sharp edged weapon.
He further deposed that 12 ruptured
injuries, contusion marks, abrasion which
are also possible to come from Lathi,
Danda.

P.W.4 had further deposed that
injury no.3 of Kumari Mani was not
attributable by the weapon like knife and
axe. This injury no.3 is possible to come
from the edge whose width is larger. The
injury no.2 of the deceased Miss Guddan
whose size is 8 cm. x 7 cm x deep to the
bone is not possible to come from weapons
like knife and axe. These injuries is also
possible to come from a wide-edged
weapon. He further deposed that there are
two types of knives; one is sharp; and the
other is blunt. One end of a knife is sharp
and blunt and the tip is sharp on both sides,
which makes it possible to have ruptured
wound. If this type of knife used for
committing murder by stabbing, then, it
will be sharp on one side and blunt on the
other. He denied the suggestion that the
injuries on the bodies of the deceased are
not possible to come at 2:00-2:30 p.m. in
the night.

11. The case was committed to the
Court of Sessions by Chief Judicial
Magistrate. The trial Court had framed
charges against the convict/appellant, Deen
Dayal Tiwari, for the offence under
Sections 302 I.P.C. He pleaded not guilty to
the charges and claimed to be tried. His
defence was of denial.

12. During trial, in all, the prosecution
examined five witnesses, namely, P.W.1Dinanath Tiwari, who is the informant and
brother of convict/appellant Deen Dayal
Tiwari, P.W.2-Smt. Suneeta alias Anita,
who is the wife of informant (P.W.1),
P.W.3- Vishesharnath Mishra, who is
independent witness, P.W.4 Dr. S.K.
Shukla, who conducted the postmortem of
the corpse of the deceased and P.W.5-Ajay
Prakash
Mishra,
who
conducted
the
investigation of the case.

13. The informant P.W.1-Dinanath
Tiwari, in his examination-in-chief, had
deposed before the trial Court that he has
5 All. State of U.P. Vs. Deen Dayal Tiwari
1299
two brothers and 5 sisters. The five sisters
are in their in-laws' house. Both the
brothers were living separately for about 4
years. The house of both of the brothers is
adjacent. His exit is in the north direction
and the exit of Deen Dayal Tiwari
(convict/appellant) is in the east direction.
His
brother
Deen
Dayal
Tiwari
(convict/appellant) used to repair and make
City Scan and X-ray machines at Lucknow.
After doing B.Sc in Lucknow, his brother
Deen Dayal Tiwari (convict/appellant) was
doing a job there. His brother Deen Dayal
Tiwari
(convict/appellant)
came
from
Lucknow for 5-6 months before the
incident and was living with his wife and
daughters in the village. The incident is
dated 11/12.11.11 at 2:30 am in the night.
He was sleeping with his children at his
house. After hearing the noise of cpkvks
cpkvks (save save), he came out of his house
and saw that the voice of wife and children
of Deen Dayal (convict/appellant) was
coming. Till then, some people of the
village had come. They tried to open the
door. When the door did not open, they
started demolishing the wall. Till then,
Deen Dayal Tiwari (convict/appellant)
opened the door and came out with blood
stained axe in his hand and threatened them
to run away from there, otherwise, he
would kill them too. After that, the door
was closed. At the same time, the police
came and after opening the door, arrested
him (convict/appellant Deen Dayal Tiwari).
The dead body of the wife and daughters of
Deen Dayal Tiwari (convict/appellant)
were lying inside the house. He got scribed
the report of the incident from a man of the
village and after putting signature thereon,
gave it to the Inspector at the place of the
incident. He proved the written report (Ext.
Ka.1). The Inspector did not record his
statement and went away with his report.
At that time, his mental condition was not
good because five murders took place in
the house. These five murders were done
by
his
brother
Deen
Dayal
Tiwari
(convict/appellant). His wife (P.W.2) and
Vishnu Tiwari of the village, Ashok Tiwari
and
others
(not
examined
by
the
prosecution) were present on the spot.

In his cross-examination, P.W.1Dinanath Tiwari had deposed before the
trial Court that he has two brothers. Deen
Dayal (convict/appellant) is elder and he is
younger. He has passed High School. Deen
Dayal Tiwari (convict/appellant) has passed
B. Sc and used to work in Lucknow. Deen
Dayal Tiwari (convict/appellant) had four
daughters and has no son. He has 3 sons
and has no daughter. 4-5 years ago, they
used to live together and before separation,
they were having love and affection with
each other. Even at the time of the incident,
Deen Dayal Tiwari (convict/appellant)
believed in his family and the mutual
relationship was cordial. There was no
estrangement. In the partition, he got the
verandah and half gallery respectively in
the north of the house and Deen Dayal
Tiwari (appellant) got two rooms, kitchen
and half gallery in the southern part. He
could not tell the exact length and width of
the room. There are no windows and
ventilators in the room. There was a slight
frost at the time of the incident. On the
night of the incident, they had eaten and
slept. He came to know about the incident
in the morning when some people of the
village gathered together and started
speaking. At that time, Ashok Tiwari, Anil
Chaurasia (not examined), Vishesharnath
Mishr (P.W.3) of the village had come.
Later, more people had come. As soon as
he came to know about the incident, he
fainted. After two hours, he regained
consciousness. At that time, the police and
officers
had
arrived.
On
regaining
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
consciousness, he did not go to the police
station to report. He got scribed the report
from another and gave it to the Inspector.
At that time, his mental condition was not
good. He was not in a position to write and
understand. He only affixed signature. He
never went to the police station about the
incident. When he regained consciousness,
the dead body was sealed, loaded on the
tractor and went from there. He did not go
to the room. He came to know about the
incident in the morning when some people
of the village gathered together and started
speaking of occurrence. The position of the
corpse could not tell whose corpse was
where. The body was in the brother's room.
He had heard this when he regained
consciousness. The Inspector had never
taken any statement from him. He had not
seen what his brother was wearing on the
day of the incident because the police had
caught him in the morning. The winter was
light due to which no one was wearing
sweater. The peoples were wearing only
light clothes.

P.W.1 had further deposed that
the house of witness Visheshwarnath Mishr
(P.W.3) is about 3 km away from the place
of the incident. The house of Ashok Tiwari
house is about 300 meters east from the
place of the incident. In the middle, there
are houses of another 2-3 people. Someone
telephonically informed the police. No one
had seen the occurrence of the incident.
Everyone came to know in the morning.
They have about 3 bighas of farmland,
which both of brothers used to sow
separately.

P.W.1 had further deposed that
the distance of police station from his
village is 14-15 Km. 2-3 months before the
incident,
Deen
Dayal
Tiwari
(convict/appellant) had already lost his
mind. He did not know about the treatment
of his brother (Deen Dayal Tiwari) done at
Lucknow and he is not even aware of any
treatment of his for mental impairment in
jail. His brother Deen Dayal Tiwari
(convict/appellant) used to abuse the
villagers and also used to quarrel with him.
His
brother
Deen
Dayal
Tiwari
(convict/appellant) also used to beat many
people of the village. The villagers were
fed up with this behaviour of Deen Dayal
Tiwari (appellant) and were upset. His
brother Deen Dayal Tiwari used to repair
Cityscan and X-ray machines in Lucknow
and earned a lot of money from this. The
condition of the house had become good.
For this reason, the villagers were jealous
of him. The incident is of the month of
November. The rice paddy was cut. He did
not
know
that
Deen
Dayal
Tiwari
(appellant) used to sleep in the field to take
care of his paddy. He did not know that
Deen Dayal Tiwari was sleeping in the barn
on the day of the incident. He denied the
suggestion that the Inspector wrote the
report by speaking to someone, and got his
signature. After that P.W.1 stated that report
was wrote down on his dictation and he had
signed on it. He denied the suggestion that
Deen Dayal Tiwari (convict/appellant) was
in the [kfygku (barn) on the night of the
incident and at that time, the miscreants
entered his house and started robbing him.

14. P.W.2-Smt. Sunita alias Anita,
who is the wife of the informant (P.W.1), in
her examination-in-chief, had deposed that
the name of her tsB (brother-in-law) is
Deen Dayal Tiwari (convict/appellant) and
the name of her husband is Dinanath
(P.W.1). Two years before the incident,
partition
was
happened
between
her
brother-in-law and her husband. On the
northern side of the house, there is a room
and a verandah, which are on her share and
two rooms from south-east respectively and
one kitchen is in her brother-in-law's share
5 All. State of U.P. Vs. Deen Dayal Tiwari
1301
and in the middle, there is a wall
constructed with brick but it was not
cemented. The four daughters of Deen
Dayal Tiwari (convict/appellant) and his
wife Siallali were sleeping in their room
and they were sleeping in her room.

P.W.2 had further deposed that
this incident happened on 11/12.11.11 at
2.30 am in the night. When she was
sleeping in her room with her husband
(P.W.1) and children, then, the sound of
cpkvks cpkvks (save save) and crying came
from her sister-in-law Sialali and her
daughters. Hearing this noise, they came
out of their house and made alarm, then,
many people of the village came. Vishnu
Tiwari, Ashok Tiwari etc. came on the spot.
After that, they tried to open the door but it
was not opened. Meanwhile, the police also
came and removed them from there. The
deadbodies of Siallali and her daughters
Mani, Riya, Guddan, Mahima was in the
room
of
Deen
Dayal
Tiwari
(convict/appellant) and Deen Dayal Tiwari
(convict/appellant) was also in the room.
She was at her own door and saw that the
police took away Deen Dayal Tiwari
(convict/appellant).
The
police
was
investigating this incident. The police had
not questioned her about this incident.

In cross-examination, P.W.2- Smt.
Sunita alias Anita had deposed that she has
three children and these three are boys. Her
brother-in-law Deen Dayal Tiwari had four
girls. Brother-in-law (convict/appellant) is
elder and her husband (P.W.1) is younger. Her
father-in-law was Laxman Prasad Tiwari and
he was five brothers, amongst them her
father-in-law was the eldest.