# DILIP PREMNARAYAN TIWARI AND ANR v. STATE OF MAHARASHTRA

- **Citation:** [2009] 16 S.C.R. 322
- **Court:** Supreme Court of India
- **Decided:** 2009-12-10
- **Case number:** Criminal Appeal No. 1026 of 2008
- **Bench:** V.S. Sirpurkar, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dilip-premnarayan-tiwari-and-anr-v-state-of-maharashtra-25293
- **Pages:** 40

## Headnote

Penal Code, 1860: s.302- Murder- Inter-caste marriage
c
by sister of A-1 -After seven months, A-1 along with A-2 and
A-3 entered the house of her sister's husband and assaulted
him, his father and other members of family - Three died and
other seriously injured - Conviction under s.302 and death
sentence awarded - On appeal, held: No infirmity in the order
of conviction - Injured witness was sister of deceased - She
D was most natural witness and had opportunity to watch the
dast3rdly attack - Her evidence was wholly credible and fully
\
supported by medical evidence - Conviction is confirmed -
Regarding sentence, A-1 was young person and not having
any c_riminal antecedent - Murders were outcome of social
E issue like intercaste ma"iage - In death sentence matter,
background of the criminal, his psychology, his social
conditions and mindset for committing offence are also
relevant - Murder was brutal, but weighing circumstances,
particularly, about the mindset of A-1, death sentence is not
..
F justified - A-3 also is a person without any criminal
antecedents and he joined the company of A-1 only out of
his commitment as he was resident of the same house - A2 had comparatively lesser role - In that view, he also did not
deserve death sentence - They are liable to be awarded life
G imprisor;iment - However, in the peculiar circumstances of
case, A-1 and A-3 shall not be released unless they complete
25 years of actual imprisonment - In case of A-2, however,
since he had not assaulted the helpless ladies, he deserves
life imprisonment in the ordinary sense - He shall have to
H
322
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 323
OF MAHARASHTRA
undergo the 20 years of actual punishment - Sentence/ A
Sentencing.
Prosecution case was that 'S' sister of A-1 married
/
deceased 'P'. The family of A-1 extremely opposed the
marriage as the boy did not belong to their caste. The B
deceased 'A' and 'Bj' used to act as messengers between
the couple before their marriage and were also
threatened by A-1 and his mother A-5.
The marriage took place on 29.10.2003. 'S' continued
her education, after marriage and started residing with her c
husband 'P'. A-5, mother of 'S' advised her to leave 'P'.
Sister of 'S' also persuaded her to leave 'P'. But she
refused. 'S' became pregnant. On account of threats, 'S'
was sent by deceased 'P' to his relative's house, PW-2.
.
D
t
On the fateful day, P's father, his cousin 'Bj', his sister
PW-4 and mother PW-8 were present in the house. At 1.15
A.M., A-1, A-2 and A-3 entered their house. A-1 and A-3
attacked P's father with knife on chest and stomach. 'P'
tried to save his father. A-1 and A-3 assaulted him with E
knife and stabbed him in stomach and chest. A-1 asked
A-2 and one unknown person to take 'P' out of the house
and kill him. PW-4 tried to save her brother 'P'. 'Bj' caught
hold of A-3 and asked him not to assault her. A-3 inflicted
•
blows with knife over hand, chest and cheeks of 'Bj'. A1 and A-3 also assaulted PW-4 and PW-8. A-2 inflicted F
injuries on the neck of 'A'. Thereafter accused person left
the place. PW-4 who was severely injured gathered
courage and contacted her uncle PW-1 on phone and
informed about assault. PW-1 reached the spot of
G
occurrence along with PW-2. Injured were taken to
hospital. 'P' on way to hospital disclosed to PW-2 that A1 to A-3 and one more person assaulted him and others.
PW-4 was unconscious. 'P' died on way. When police
reached the spot, they found dead bodies of P's father,
H
324
SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A
'Bj' and 'A'. PW-1 lodged FIR against A-1 to A-5. Trial court
acquitted A-4 and A-5 but convicted A-1 to A-3 and
awarded death sentence. High Court confirmed death
sentence. Hence these appeals.
8
Dismissing the appeals and modifying the
sentences, the Court
HELD: 1. The names of A-2 and A-3 were not found
in FIR. Though the omission of names of A-2 and A-3 is
significant, much importance cannot be given to this
C omission. The FIR was g

## Text

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[2009] 16 (ADDL.) S.C.R. 322
A
DILIP PREMNARAYAN TIWARI AND ANR.
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1026 of 2008)
B
DECEMBER 10, 2009
[V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]
Penal Code, 1860: s.302- Murder- Inter-caste marriage
c
by sister of A-1 -After seven months, A-1 along with A-2 and
A-3 entered the house of her sister's husband and assaulted
him, his father and other members of family - Three died and
other seriously injured - Conviction under s.302 and death
sentence awarded - On appeal, held: No infirmity in the order
of conviction - Injured witness was sister of deceased - She
D was most natural witness and had opportunity to watch the
dast3rdly attack - Her evidence was wholly credible and fully
\
supported by medical evidence - Conviction is confirmed -
Regarding sentence, A-1 was young person and not having
any c_riminal antecedent - Murders were outcome of social
E issue like intercaste ma"iage - In death sentence matter,
background of the criminal, his psychology, his social
conditions and mindset for committing offence are also
relevant - Murder was brutal, but weighing circumstances,
particularly, about the mindset of A-1, death sentence is not
..
F justified - A-3 also is a person without any criminal
antecedents and he joined the company of A-1 only out of
his commitment as he was resident of the same house - A2 had comparatively lesser role - In that view, he also did not
deserve death sentence - They are liable to be awarded life
G imprisor;iment - However, in the peculiar circumstances of
case, A-1 and A-3 shall not be released unless they complete
25 years of actual imprisonment - In case of A-2, however,
since he had not assaulted the helpless ladies, he deserves
life imprisonment in the ordinary sense - He shall have to
H
322
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 323
OF MAHARASHTRA
undergo the 20 years of actual punishment - Sentence/ A
Sentencing.
Prosecution case was that 'S' sister of A-1 married
/
deceased 'P'. The family of A-1 extremely opposed the
marriage as the boy did not belong to their caste. The B
deceased 'A' and 'Bj' used to act as messengers between
the couple before their marriage and were also
threatened by A-1 and his mother A-5.
The marriage took place on 29.10.2003. 'S' continued
her education, after marriage and started residing with her c
husband 'P'. A-5, mother of 'S' advised her to leave 'P'.
Sister of 'S' also persuaded her to leave 'P'. But she
refused. 'S' became pregnant. On account of threats, 'S'
was sent by deceased 'P' to his relative's house, PW-2.
.
D
t
On the fateful day, P's father, his cousin 'Bj', his sister
PW-4 and mother PW-8 were present in the house. At 1.15
A.M., A-1, A-2 and A-3 entered their house. A-1 and A-3
attacked P's father with knife on chest and stomach. 'P'
tried to save his father. A-1 and A-3 assaulted him with E
knife and stabbed him in stomach and chest. A-1 asked
A-2 and one unknown person to take 'P' out of the house
and kill him. PW-4 tried to save her brother 'P'. 'Bj' caught
hold of A-3 and asked him not to assault her. A-3 inflicted
•
blows with knife over hand, chest and cheeks of 'Bj'. A1 and A-3 also assaulted PW-4 and PW-8. A-2 inflicted F
injuries on the neck of 'A'. Thereafter accused person left
the place. PW-4 who was severely injured gathered
courage and contacted her uncle PW-1 on phone and
informed about assault. PW-1 reached the spot of
G
occurrence along with PW-2. Injured were taken to
hospital. 'P' on way to hospital disclosed to PW-2 that A1 to A-3 and one more person assaulted him and others.
PW-4 was unconscious. 'P' died on way. When police
reached the spot, they found dead bodies of P's father,
H
324
SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A
'Bj' and 'A'. PW-1 lodged FIR against A-1 to A-5. Trial court
acquitted A-4 and A-5 but convicted A-1 to A-3 and
awarded death sentence. High Court confirmed death
sentence. Hence these appeals.
8
Dismissing the appeals and modifying the
sentences, the Court
HELD: 1. The names of A-2 and A-3 were not found
in FIR. Though the omission of names of A-2 and A-3 is
significant, much importance cannot be given to this
C omission. The FIR was given by a person who had seen
the body of his young son 'Bj' having been brutally
murdered. He also saw the dead body of his brother-inlaw and also came to know that the other three members
of the family were also seriously injure~ in the incident.
D The witness was bound to be excited and some scope
would have to be given to the mental state of the witness
at that time. The trial court as well as the High Court
rightly did not attach much importance to this omission.
[Para 14] [340-G-H; 341-A]
E
2.1. From the evidence of two important witnesses
one of whom was the author of the FIR what transpires
is that while the role played by A-1 was reflected in the
FIR, the roles played by A-2 and A-3 were not reflected
F
therein. Even the alleged disclosure by deceased 'P' to
PW-2 in the Ambulance Van would depend upon the
evidence of PW-4 and PW-8 who were also present in the
same van.PW-4 was an injured witness. As per evidence
of PW-9, the doctor, PW-4 had suffered as many as four
contused lacerated wounds. All the injuries appeared to
G be serious injuries and the injuries were stated to be
possible with sharp edged weapon. Therefore, there can
be no dispute about the presence of PW-4 on the scene.
Significantly enough, in her lengthy cross-examination,
very little was asked to her about the actual incident of
H
I
•
-...
..
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 325
OF MAHARASHTRA
assault. This witness was the most natural witness and
A
had also the opportunity to watch the dastardly attack
and she had withstood her cross-examination extremely
well insofar as the attack by accused A-1 and A-3 was
concerned. She was not injured till her father, deceased
brother 'P' and 'Bj' were attacked by the accused
B
persons. [Paras 16, 17, 19 and 20] [342-D; 342-E; 344-E]
2.2. The evidence of PW-4 about the role played by
A-1 and A-3, to begin with, and thereafter by A-2 in
assaulting the deceased 'A' has gone almost C
unchallenged. There is practically nothing in the crossexamination 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 'Bj' and her
father as also described the clothes worn by 'P'. That
claim was also not disputed nor demolished in crossD
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
E
was extremely natural and the witness did not try to
unnecessarily implicate anybody else. She did not assign
any role to the unknown person. It is only as regards
deceased 'A' that she attributed the assault to A-2 against
him. Her whole evidence being the evidence of injured
F
eye-witness was wholly credible as held by the trial court
as well as the High Court. Even her evidence, insofar as
the assault on herself and her father and 'Bj' is
concerned, is supported by the medical evidence.
Therefore, the contention that A-3 was not identified
merely because his name did not appear specifically in
G
the FIR cannot be accepted. The contention to the effect
that A-2 was not identified at all by this witness also is
rejected. This clear cut eye-witness account by PW-4 and
H
326 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A PW-8 is enough to convict A-1, A-2 and A-3. [Paras 22 and
23] [346-C-H; 348-E]
3.1. When the matter was pending before the High
Court for confirmation, the accused filed an application
8 under Section 391 Cr.P.C. to take on record dying
declaration of 'P'. 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 the doctor PW-5 by deceased 'P',
iC 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
A-2 was concerned. It was also pointed out that in the said
D dying declaration, the name of A-2 was not mentioned
and that due to inadvertence, the said dying declaration
was not confronted during the evidence of PW-5. The
application was rejected by the High Court. Very
strangely, this application was opposed by the Public
E Prosecutor as also the defence counsels. The High Court
observed in its order dated 01.09.2007 that though the
doctor, PW-5 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
F with regard to dying declaration of 'P' by the counsel for
A-2, before the trial court. It was on these grounds that
the High Court observed that in view of the strong
opposition by A-1 and A-3 to the application, the High
Court was not inclined to exercise its discretion in favour
G of the appellant and on that ground the application was
rejected. [Para 24] [349-B, H]
H
3.2. The proceedings before the High Court were in
the nature of an extended trial. The confirmation
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 327
OF MAHARASHTRA
proceedings are always the original proceedings. The A
High Court was dealing with the accused who was facing
death sentence. Therefore, merely because no question
was asked to the doctor, 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 B
re-calling PW-5 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, the document should have been
brought on record and secondly, even if PW-5 who C
recorded the dying declaration was not confronted with
that dying declaration, that opportunity could not have
been denied before the High Court. The production of the
document is allowed. [Para 25) [350-A-E]
3.3. Since A-1 and A-3 did not have opportunity to D
1 cross-examine the witnesses about the document, the
said document would not be considered against A-1 and
A-3. Insofar as A-2 is concerned, it is true that his name
does not appear in the said dying declaration but that
would be of no consequence for the simple reason that E
the evidence of the eye-witness completely fixes the
criminal liability on the part of A-2. Therefore, even if the
said dying declaration is somewhat helpful to A-2 that by
~ itself would not wipe out the evidence of the two eyewitnesses whose evidence was credible as held by the
F
courts below. The conviction of all the three appellants
as ordered by the Sessions Judge and confirmed by the
High court was correct and is confirmed. [Para 28) [351H; 352-A-C]
Rampa/ Pithwa Rahidas & Others. v. State of Maharashtra G
_.
1994 Supp (2) SCC 73, referred to.
4.1. On the question of sentence, a close scrutiny of
the judgment does not show any effort on the part of the
High Court to consider the mitigating circumstances, H
328
SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.
A though such exercise was done by the trial court. The
>-
mitigating circumstances considered by the Sessions
Court were the age of the accused persons being
between 20-25 years; and their past clean record. [Para
32] (353-G, H]
B
Bachchan Singh v. State of Punjab 1980 (2) SCC 684,
relied on.
Machhi Singh v. State of Punjab 1983 (3) SCC 470 as
.,_
also in; Dhananjoy Chatterjee@ Dhana v. State of West
c Bengal 2004 (9) SCC 751; Ronny alias Ronald James
Alwaris & Ors. v. State of Maharashtra 1998 (3) SCC 625;
fFdiga Anamma v. State of Andhra Pradesh 1974 (4 )SCC
443; State of U.P. v. DhafTT/endra Singh & Anr. 1999 (8) SCC
325; Lehna v. State of Haryana 2002 (3) SCC 76, referred
D to.
4.2. All murders are foul, however, the degree of
~.
brutality, depravity and diabolic nature, differ in each
case. Insofar as A-1 is concerned, there can be no doubt
E 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. He was duly armed and in company
of three other friends. The psychology of A-1 and why
he wait for seven months are relevant considerations for
~
F deciding the question of sentence. A-1 was a young
person not even having crossed his 25 years of life and
not having any criminal antecedent. The murders were
the outcome of social issue like a marriage with ci person
of so-called lower caste. However, these social issues
G are relevant, while considering the death sentence in the
circumstances as these. 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 329
OF MAHARASHTRA
-'-
this case. [Paras 39 and 40) [356-E-G)
4.3. No doubt, the murder was brutal. But weighing
A
all the circumstances, particularly, about the mindset of
A-1, the cruel acts on the part of the accused would not
justify the death sentence. The disturbed mental feeling B
or the constant feeling of injustice has been considered
by this Court as a mitigating circumstance. In a death
sentence matter, it is not only the nature of the crime but
i
the background of the criminal, his psychology, his
social conditions and his mindset for committing the c
offence are also relevant. [Para 42) [358-D-H; 359-A-B]
Om Prakash v. State of Haryana 1999 (3) SCC 19; Ram
Pal v. State of U.P. 2003 (7) SCC 141; Ravji alias Ram
Chandra v. State of Rajasthan 1996 (2) SCC 175; Santosh
Kumar Satishbhushan Bariyar v. State of Maharashtra JT D
_,
2009 (7) SC 248, referred to.
4.4. A-3 also does not deserve the death sentence.
Even he is a person without any criminal antecedents
and he appears to have joined the company of A-1 only E
out of his commitment as he was shown to be a resident
of the same house. A-2 has comparatively a lesser role.
Admittedly, he did not assault 'P' or his father to begin
with. Who assaulted 'P' and 'A' is still not clear, as it could
_..
also be that in the assaults the leading role could have F
been taken by the unknown accused. In that view, he
also does not deserve the death sentence. Ordinarily, they
would be liable to be awarded the life imprisonment.
However, in the peculiar circumstances of this case, mere
life imprisonment which is capable of resulting into 20 G
years of imprisonment or 14 years of actual imprisonment
may not be adequate punishment for these accused
_.,
persons. Considering the overall circumstances, A-1 and
A-3 deserve the life imprisonment. But they shall not be
released unless they complete 25 years of actual
H
330 SUPREME COURT REPORTS (2009) 16 (ADDL.) S.C.R.
A
imprisonment. In case of A-2, however, since he had not
assaulted the helpless ladies nor had he taken part in the
~
assault on father of 'P', he deserves the life imprisonment
in the ordinary sense. He shall have to undergo the 20
years of actual punishment. [Paras 44 and 45] (360-C-H]
B
Haru Ghosh v. State of West Bengal JT 2009 (11) SC
240; Swami Shradhanand@ Murali Manohar Mishra v. State
· ofKamataka JT 2008 (8) SC 27, relied on.
Case Law Reference:
c
1994 S~p~ '(2f'scc 73 referred to
Para 26
• "' :.-.
J,
-
'
.
.
19ao (2) sec 684
relied on
Para 30
1983 (3) sec 410
referred to
Para 30
D
2004 (9) sec 751
referred to
Para 31
1998 (3) sec 625
referred to
Para 31
1974 (4 )SCC 443
referred to
Para 31
E
1999 (8) sec 325
referred to
Para 31
2002 (3) sec 76
referred to
Para 31
1999 (3) sec 19
referred to
Para 42
F
2003 (7) sec 141
referred to
Para 42
1996 (2) sec 115
referred to
Para 42
JT 2009 (7) SC 248
referred to
Para 43
G
JT 2009 (11) SC 240
relied on
Para 45
JT 2008 (8) SC 27
relied on
Para 45
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
H
No. 1026 of 2008.
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE
331
OF MAHARASHTRA
From the Judgment & Order dated 1.11.2007 of the High
A
Court of Judicature at Bombay in Criminal Appeal No. 1086
of 2006 and Confirmation Case No.2 of 2007.
WITH
Crl. No. 1025 of 2008
B
Gaurav Agrawal, S.N. Raj. Sushil M. Shukla, .Balaji
-+
Srinivasan for the Appellants.
Sushil Karanjkar (for Ravindra Keshavrao Adsure) for the c
Respondent.
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. This judgment will dispose of two
appeals, they being Criminal Appeal No.1026 of 2008, filed on
D
-+
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
E
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
F
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
G
were convicted under different Sections for various offences
-1
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 f.or the
offence under Section 302, they were awarded 10 years'
H
332
SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A 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.
B
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
C 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,
D 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
E 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,
F Sandra, Mumbai. According to the prosecution, there were
JI>
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
G going on for about 5-6 years and dececised 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 333
OF MAHARASHTRA [VS. SIRPURKAR, J.]
. ...--(
kicks and fist blows on account of her love affair with Prabhu A
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
B
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 c
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 D
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 E
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
F
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 G
May, 2004. On that day, Prabhu's father Krishnan Nochil himself,
his nephew Bijit, Prabhu's sister, Deepa (PW-4) and Indira
-1
(PW-8) were present in the Noichil ho·.:sehold. At about 1.15
a.m. at night someone knocked the back side door of their
house. OP.ceased Krishnan Nochil opened the door. According
H
334 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A to the prosecution, the three appellants, namely, Di lip (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
8
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
c 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
D body and when Deepa fell down, Indira, Prabhu's mother who
was awakened, tried to intervene. Pit that tirr.e, 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
E 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
F
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
G 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
H (PW-1), on receiving the phone call in the dead of night from
"-4
-
I
_,
"
"
•
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 335
OF MAHARASHTRA [V.S. SIRPURKAR, J.)
Deepa, rushed to the Noichil household in Khairpada Waliv at
about 4'0 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. lnvestigat!on officer also prepared
the spot Panchnama and seized blood stained handkerchief,
A
B
c
D
E
F
G
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336
SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A 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 postmortem.
B
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.
t"'
c 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. Acc.1_1c:sd No.2, Mano.i came to be arrested only
D
on 22.06.2004 while the parents of Dilip (original accused
No.1 ), Premnarayan Tiwari (original accused i\lo. 4) and Tulsa
Devi (original accused f'.!a.S) ·;;ere also arrested on 25.6.2004.
tAfter 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,
E 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 1208, IPC als~ was not proved
against them, but awarded death sentence to the remaining
accused and that is how the matter has come before us.
F
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,
G 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
H such it was very risky to rely on the evidence of those
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 337
OF MAHARASHTRA [V.S. SIRPURKAR, J.]
--4
witnesses. Learned counsel severely attacked the so-called oral
A
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
B
to make a dying declaration. The counsel, therefore, urged that
the acceptance of such a weak piece of evidence for
-i
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 c
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,
D
l
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
E
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
F
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
G
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
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338 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A 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,
B 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
c 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
D (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
E 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
,.
F 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.
•
G
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
H more person as the persons who had assaulted her family
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 339'
OF MAHARASHTRA [V.S. SIRPURKAR, J.]
.... ~
members and herself. Because of the presence of mind of A
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 B
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, c
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 D
informed about the incident. However, he was informed by
4
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
E
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
F
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 sisterG
in-law Sushma and his three associates had trespassed into
. ..i
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.
H
340
SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A 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
B associates had given blows with sharp weapon to his brotherin-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
c 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
D 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
E 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
F 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
G who had seen the body of his young son having been brutally
murdered. He had also seen the dead body of his brott:ler-inlaw 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
H would have to be given to the mental state of the witness at
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 341
OF MAHARASHTRA [V.S. SIRPURKAR, J.]
~>i
that time. The significance of this omission will be considered A
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) B
and Sunil (A-2), their names were not mentioned in the report.
After these two persons went to the Primary Health Centre from
-f
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, c
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
D
in the Ambulance Van. That is the claim of Shashidharan (PW-
-l
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
E
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
F
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 G
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.