Holding

The convictions under Sections 302, 307, 452, 34 and 120B IPC are upheld, but the death sentences are commuted to life imprisonment with 25 years actual imprisonment for the principal offenders and 20 years for the lesser participant.

Summary

The appellants Dilip Premnarayan Tiwari, Manoj Paswan and Sunil Ramashray Yadav were convicted for the brutal murder of three persons and the grievous injury of others during an attack motivated by opposition to an inter‑caste marriage. The prosecution relied mainly on the testimony of two injured eye‑witnesses, who identified all three accused, despite the omission of their names from the FIR and the absence of a dying declaration in the trial record. The Supreme Court held that the eye‑witness evidence was credible and sufficient to sustain the convictions, and that the dying declaration, though admitted later, did not affect the liability of the accused. While confirming the convictions, the Court found that the death penalty was not justified given the accuseds' young age, clean records and the social context, and therefore modified the sentences to life imprisonment with specified periods of actual imprisonment. The appeals were dismissed, but the death sentences were commuted to life imprisonment with 25 years actual imprisonment for A‑1 and A‑3, and 20 years for A‑2.

Issues considered

The adequacy of the eye‑witness testimony and the impact of the omission of the accuseds' names from the FIR on the conviction.
The admissibility and effect of the deceased's dying declaration on the trial, particularly for the second accused.
Whether the death penalty is warranted in a case involving multiple murders, considering mitigating factors such as age, lack of prior criminal record, and the social motive of an inter‑caste marriage.
The appropriate quantum of punishment: death sentence versus life imprisonment and the period of actual imprisonment.

Legislation cited

Code of Criminal Procedure, 1973s. 294(2), s. 391
Indian Penal Code, 1860s. 120B, s. 302, s. 307, s. 34, s. 452

Subjects

murderinter‑caste marriagedeath penaltylife imprisonmentmitigating circumstanceseye‑witness testimonydying declarationFIR omissioncommon intentioncriminal conspiracy

Judgment

[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
by sister of A-1 -After seven months, A-1 along with A-2 and
c 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 - A-
2 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'. A-
1 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
occurrence along with PW-2. Injured were taken to G
hospital. 'P' on way to hospital disclosed to PW-2 that A-
1 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.

Dismissing the appeals and modifying the
8
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-in-
law 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 I
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
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 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 'Bj' and her
father as also described the clothes worn by 'P'. That
claim was also not disputed nor demolished in cross- D
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', i-

C 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]

3.2. The proceedings before the High Court were in
the nature of an extended trial. The confirmation
H
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 eye-
witnesses 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) [351-
H; 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
that he was the chief architect of the crime. There can
E 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) A

4.3. No doubt, the murder was brutal. But weighing
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 PELLATE 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
Respondent.
c
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
Section 34 and Section 120B, IPC (substantive). Eventually, F
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
passage of time. There were even proposals that on account E
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
body and when Deepa fell down, Indira, Prabhu's mother who
D
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
Abhayraj @ Bachhu who had in the meantime come there.
E 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
F 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
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 335
OF MAHARASHTRA [V.S. SIRPURKAR, J.)
Deepa, rushed to the Noichil household in Khairpada Waliv at A

-
"-4
about 4'0 clock in the morning only to find that his son Bijit and
I
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 B
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
c
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, D
_, 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.
E
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 F
" 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
G
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,
H
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 post-
~

-
mortem.
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
t"'
having blood stains were recovered at the instance of Dilip.
Since Indira was very seriously injured, her statement could be
c 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
on 22.06.2004 while the parents of Dilip (original accused
D No.1 ), Premnarayan Tiwari (original accused i\lo. 4) and Tulsa
Devi (original accused f'.!a.S) ·;;ere also arrested on 25.6.2004. t-

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,
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,
Advocate. Shri Gaurav Agrawal attacked the findings of the Trial
G
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
H
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
corroborating the prosecution evidence could not be accepted.
-i
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 D
evidence of Deepa (PW-4) and Indira (PW-8) was unnatural,
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
much as four persons had lost their lives. F

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 H
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
(accused No.2) was highly suspicious, more particularly, in view
D
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
E 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
instead asked them to contact Waliv Police Station.Thus, they E
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 F
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- G
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 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
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
was specific in asserting that from the spot of occurrence he
D
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-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
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
in the Ambulance Van. That is the claim of Shashidharan (PW- D
-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. 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 H
342 SUPREME COURT REPORTS (2009) 16 (ADDL.) S.C.R.

A 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
8 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
c 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
D 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.

E 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
F 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 bP.Gn
reflected in medical Exbt.57 and the injuries were stated to be
possible with sharp edged weapon like articles 6, 17 and 19.
G 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 343
OF MAHARASHTRA [V.S. SIRPURKAR, J.]

-->1 the electric light and the further fact that as soon as the door A
was opened accused Manoj, Dllip and Sunil and one unknown
person entered the house and they were all armed with knife.
She asserted that accused Di lip (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 B
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 c
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
0
inflicted knife blows on face, stomach and other parts of her
·-l 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 E
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 Ba Ian (PW-1 ). F
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 G
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. H
344 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.

A 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
B 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 1
had never come to their house after the marriage of Sushma.
c 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
0
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
E 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
F 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.
G 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
H omissions were shown in her evidence and she admitted that
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 345
OF MAHARASHTRA [V.S. SIRPURKAR, J.]
-~ she had not stated that all the four persons were armed with A
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 iA her e'.11idence
to the effect that she asserted that she had told the names of B
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 c
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 0
a false statement that accused Sunil and one unknown person
-1 took Prabhu out of the room as stated.

21. lnspite 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 E
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 F
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 G
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 H
346 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.

A 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
B 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 i.
mother of Dilip. Therefore, it was obvious that the witness had
c 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
0
clothes which were worn by Bijit and her father as also
described the clothes worn by Prabhu. That claim has also not 1-
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
E 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 ,,..
F 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
G 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 347
OF MAHARASHTRA [V.S. SIRPURKAR, J:]
his name did not appear specifically in the FIR. We also reject A
---4
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
B
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
c
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 D
had been dragged outside. She then asserted that accused
-l Sunil chased Abhayraj who ran outside the house from the
back door. She asserted that Prabhu disclosed to her that Dilip
(accuse9 No.1), Manoj (accused No.3) and Sunil (accused
No.2) and one more person had assaulted him with knife. She E
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 F
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. G
Her claim in the examination-in-chief that she knew accused
Dilip (accused No.1), Manoj (accused No.3) and Sun ii
(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 H
348 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.

A 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
B 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 ;-

c defenceof as
friend Dilip. In our opinion, these omissions do not help the
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
D
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 Di lip (accused No.1 ), Manoj (accused No.3) and
E 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
F dated 17.05.2004. This dying declaration was a part of the )o--

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
G in evidence. It is counter signed by Dr. S.S. Anakal (PW-5). It
is also counter signed by the Investigating Officer Kailash
BhaNe. 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 349
OF MAHARASHTRA [V.S. SIRPURKAR, J.]
Dilip and accused Manoj inflicted knife blows on him and at that A
--"' 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 B
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 c
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 notifrought 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 D
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 tp inadvertence, the said dying declaration was not
E
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 F
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 G
opposition by Dilip (accused No.1) and Manoj (accused No.3)
to the application, the High Court was not inclined to exercise
-4 its discretion in favour of the appellant and on that ground the ·
application stood rejected.
H
350 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.

A 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
B 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 ~ -

c 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
D
before the High Court were in the nature ot original proceedings
and an extended trial. We are surprised that the Public j..
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
E document. We, therefore, allowed the production of the
document.

26. In a reported judgment Rampa/ Pithwa Rahidas &
Others. v. State of Maharashtra [1994 Supp (2) SCC 73)
F somewhat similar situation occurred where this Court reiterated r
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 aboutthe offence and he
G 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 351
OF. MAHARASHTRA [V.S. SIRPURKAR, J.]
---1 also observed in paragraph 37 as under: A

"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 B
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
c
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 D
....\ 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 E
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. F
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 G
persons are facing death sentence awarded by the Trial Court
-f and confirmed by the High Court. We would not, therefore,
increase the agonies of the accuseJ 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 H
352 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A 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
B 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
..\ -
c 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.

D 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 ilas been confirmed by the High ~
Court. We must, at this juncture, take the overall circumstances
while taking into consideration the death sentence awarded by
E 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-a-vis the mitigating
circumstances. The High Court considered the following
F circumstances justifying the imposition of death penalty"
"(a) Helpless victims
(b) Unarmed victims

(c) Victims woken from sleep at midnight
G
(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;

H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 353
OF MAHARASHTRA [V.S. SIRP'URKAR, J.]
~'ol
(e) Attacking ruthlessly six persons, Deepa and Indira were A
let off presumed to be dead, seeking to wipe off the entire
family;
IP
(f) Attack on every vital organ;

(g) Young boy Bijit was brutally assaulted; B

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

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

0) Assault on lower caste based on caste hatred:
l (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 D
-l 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
E
751] and quoted extensively therefrom. One other case Ronny
alias Ronald James Alwaris & Ors. v. State of Maharashtra
[1998 (3) sec 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] F
as also Lehna v. State of Haryana [2002 (3) sec 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 G
done by the Trial Court in paragraph 42 of its judgment. The
A mitigating circumstances considered by the Sessions Court
are:

"(1) The age of the accused persons being between 20-
H
354 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.

A 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
B 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,
c 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 {

D Keralite. Therefore, to preserve the family honour, Dilip had
taken the revenge of the so-called insult of his family. It was also
t.
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.
E 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
F 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
G 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 µointed 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 355
OF MAHARASHTRA [V.S. SIRPURKAR, J.]
_,.
life. According to the learned counsel, there is very little or almost A
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 B
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 c
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.
D
-i 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, E
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 F
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
G
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
H
356 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.

)'r.~
A 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
B 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
c 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
D 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
E 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 ..
F 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
G 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
H
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 357
OF MAHARASHTRA [V.S. SIRPURKAR, J.]
.. __..,
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 B
remarks even from the persons who really have no business
to poke their nose into the affairs of the family. Dilip, therefore,
l /, 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 c
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. D
-~
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
E
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 F
f 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 G
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 H
358 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.

A 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
B 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,
c 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.
D 42. No doubt, the murder was brutal. However, it has been ...
pointed out by Shri Gaurav Agrawal as also Shri Raj that this t·

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
E cam.e, 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 circumstance~.
particularly, about the mindset of Dilip, the cruel acts on the part
of the accused would not justify the death sentence. The
I'-
F disturbed mental feeling or the constant feeling of injustice has
been considered by this Court as a mitigating circumstance in '1
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 lcilled
G 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) sec 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
H contended as against this, that in the present case while four
DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 359
....... OF MAHARASHTRA [V.S. SIRPURKAR, J.]
persons were killed, two helpless ladies were also assaulted A
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 B
the background of the criminal, his psychology, his social
r ._ 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
c
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 D
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
sh6uld conform to and be consistent with the atrocity and E
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" ... ."
' F
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
G
___, 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
H
360 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
~ ...
A 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
B 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
c 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
D 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
E 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 ,.
F 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 assau!ted Krishnan,
Prabhu and the two helpless ladies would deserve the life
imprisonment. But we direct that they shall not be released
G
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
H
-(

DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 361
OF MAHARASHTRA [V.S. S1RPURKAR, J.]
._ _.. course has been held to be permissible in Haro Ghosh v. State A
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 Kamataka (JT 2008 (8) SC
27] where this Court after considering several cases held that B
such a course was permissible. We accordingly dismiss these
appeals, however, modifying the sentences as shown above.
The appeals are disposed off accordingly.

D.G. Appeals dismissed.
c