“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1026 OF 2008

Dilip Premnarayan Tiwari & Anr.          ….  Appellants

Versus

State of Maharashtra            …. Respondent

WITH

CRIMINAL APPEAL NO.1025 OF 2008

Sunil Ramashray Yadav …..Appellant

   Versus

State of Maharashtra ….Respondent      

J U D G M E N T

V.S. SIRPURKAR, J.

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

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

accused  Dilip  Premnarayan  Tiwari  and  Manoj  Paswan,  as  also  

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

Their appeals against their convictions by the Sessions Judge have  

been dismissed by the Bombay High Court and the death sentence  

awarded to all the three accused has also been confirmed.

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

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

120B of the Indian Penal Code (‘IPC’ for short) and Section 34 and  

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

4, Premnarayan Brijkishore Tiwari and accused No.5 Tulsa Devi were

acquitted  by  the  Trial  Court  whereas  the  other  three  accused  

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

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

were  convicted  under  different  Sections  for  various  offences  

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

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

While  they  were  awarded  death  sentence  for  the  offence  under  

Section 302, they were awarded 10 years’ rigorous imprisonment  

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

imprisonment each for offence under Section 307 read with Section  

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

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

imprisonment.

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

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

accused  also  filed  appeals  against  their  conviction  and  the  

punishment therefor before the High Court.  The High Court has  

confirmed  the death  sentence while  the appeals  of the  accused  

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

before us.

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

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

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

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

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

neighbourhood of their residential house.  Ultimately, she got

married  to  Prabhu.   Prabhu  being  a  Keralite  and  belonging  to  

‘Ezhava’ caste, the marriage was not approved of by the family of  

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

Uttar Pradesh.  The whole family of Sushma was extremely opposed  

to  the  marriage  which  took  place  on  29.10.2003  before  the  

Registrar  of  Marriages,  Bandra,  Mumbai.   According  to  the  

prosecution,  there  were  efforts  to  call  back  Sushma  into  her  

familyfold. According to the prosecution, she was threatened and  

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

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

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

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

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

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

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

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

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

stated earlier, the marriage took place on 29.10.2003 and after  

the marriage Sushma started residing with her husband, deceased  

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

and she continued her education even after her marriage.  Accused  

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

promised her that her second marriage would be arranged in Uttar  

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

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

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

and tried to persuade her that her husband was not smart and was

not earning anything and, therefore, she should accompany her to  

their hometown in Uttar Pradesh where they had selected one youth  

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

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

these threats, Sushma had suggested that a police complaint should  

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

husband Prabhu that everything would be alright with the passage  

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

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

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

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

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

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

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

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

Indira.   

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

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

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

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

someone  knocked  the  back  side  door  of  their  house.  Deceased  

Krishnan Nochil opened the door.  According to the prosecution,  

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

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

Manoj assaulted Krishnan Nochil with knife over the chest, stomach  

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

and accused No. 3, Manoj assaulted him also with knife and stabbed

him in stomach and chest.  As per the prosecution case, Dilip  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

immediate neighbour and used to live in between the houses of  

Tiwari household and Noichil household.  Having been assaulted, he  

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

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

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

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

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

informed him about the incident of assault at the instance of  

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

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

injured somehow opened the front door and shouted ‘bachao bachao’.

7. At this time Prabhu was lying in an injured condition in

front of the door and was shouting ‘mummy mummy’’.  Balan (PW-1),  

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

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

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

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

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

local dispensary by Head Constable Bhosale who was on  bandobast  

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

being  informed.   Bhosale  had  also  sent  a  message  to  Manikpur  

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

tempo and arranged to send the three injured to Primary Health  

Centre, Navghar.  

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

Shashidharan  and  come  to  Navghar  along  with  Shashidharan.  

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

they were very seriously injured and could not have been treated  

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

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

Shashidharan  who was  accompanying them  in the  mobile van  that  

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

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

family.

9. The injured Prabhu reached Bhagvati hospital along with  

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

injuries.  Deepa had lost her consciousness while Indira was also  

very seriously injured and they were treated in the Hospital.  But

before that, at about 5 a.m. Balan came to the police station and  

lodged  the  First  Information  Report  which  was  registered  as  

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

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

The  police  reached  the  spot  and  PSI  Shri  Bharve  prepared  the  

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

He also prepared the inquest Panchnama of Abhayraj who was lying  

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

dead bodies were sent for post-mortem examination.  Investigation  

officer also prepared the spot Panchnama and seized blood stained  

handkerchief, blood stained iron knife which were lying there and  

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

statement came to be recorded on 18.05.2004 after she regained  

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

10. During the investigation, the statements of witnesses like  

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

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

blood  stains  were  recovered  at  the  instance  of  Dilip.   Since  

Indira was very seriously injured, her statement could be recorded  

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

on 02.06.2004.  He has also disclosed on 05.06.2004 about the  

knife and the blood stained clothes which were seized.  Accused  

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

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

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

were also arrested on 25.6.2004.  After the completion of the  

investigation  the  charge  sheet  was  filed  against  five  named

accused and on that basis charges were framed against all the  

accused persons.  The Trial Court, however, acquitted original  

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

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

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

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

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

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

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

was represented by Shri Sushil Karanjkar, Advocate.  Shri Gaurav  

Agrawal attacked the findings of the Trial Court and the High  

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

argument was that the whole prosecution case stood on extremely  

weak  basis  inasmuch  as  all  the  prosecution  witnesses  were  

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

evidence of those witnesses.  Learned counsel severely attacked  

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

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

Learned counsel argues that Prabhu who was severely injured and  

who died barely within few hours of his reaching the Hospital  

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

dying  declaration.   The  counsel,  therefore,  urged  that  the  

acceptance of such a weak piece of evidence for corroborating the  

prosecution evidence could not be accepted.  The learned counsel  

also  invited  our  attention  to  the  fact  that  though  from  the  

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

all, four accused persons; the fourth accused person besides the

three appellants could neither be identified nor brought before  

the  law.   Therefore,  the  whole  prosecution  case  had  become  

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

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

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

riddled  with  material  contradictions  and  omissions  and  was  

contradictory inter se.  The learned counsel also commented upon  

the medical evidence suggesting that the said evidence was not  

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

the circumstantial evidence, the learned counsel pointed out that  

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

in confirming death sentence was concerned, the learned counsel  

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

four persons had lost their lives.

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

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

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

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

attention  to  the  fact  that  after  reaching  the  Hospital,  the  

deceased Prabhu had made a dying declaration which was recorded by  

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

dying declaration was counter signed by the Investigating Officers  

and the said dying declaration also bore the thumb impression of  

deceased Prabhu Krishnan Nochil.  Learned counsel further pointed  

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

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

further pointed out that though this dying declaration was not put

to the witness, Dr. Anakal (PW-5) during the Trial before the  

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

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

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

Prosecutor to admit this document whereupon the Public Prosecution  

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

therefore,  the  non-consideration  of  the  said  dying  declaration  

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

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

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

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

fact  that  the  identity  of  Sunil  was  not  established  by  the  

prosecution either by holding Test Identification Parade or even  

in the Court hall as the witnesses had not specifically identified  

the accused persons individually.  Shri Raj also urged that the  

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

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

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

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

Manoj as there was no evidence brought on record regarding their  

acquaintance  and  even  the  prosecution  had  not  collected  any  

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

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

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

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

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

Balan (PW-1) on his landline and narrated the incident to him.

She undoubtedly claims that she had taken the names of Dilip (A1),  

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

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

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

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

resident of Andheri as Balan.  Both these witnesses were related  

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

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

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

does  not  specifically  say  so  in  his  evidence.   Shashidharan  

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

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

assaulted the members of Nochil family.  Significantly enough,  

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

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

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

then seems to have contacted his brother Gopal Krishnan and with  

his help contacted Vasai Police Station and informed about the  

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

Waliv Kherpada where incident had taken place comes within the  

jurisdiction  of  Manikpur  Police  Station.   According  to  this  

witness, he narrated this incident to Manikpur Police Station by  

calling them but they refused and instead asked them to contact  

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

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

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

along with injured Prabhu had been sent to the Primary Health

Cenre of Wasai.  The claim of Shashidharan (PW-2) is that he and  

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

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

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

report he informed that Deepa Nochil had informed him at about  

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

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

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

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

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

Significantly enough, the names of accused Manoj and accused Sunil  

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

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

marriage of Sushma with Prabhu and inspite of their opposition  

Sushma  had married  Prabhu; hence  Dilip and  his associates  had  

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

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

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

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

Prabhu were seriously injured and were taken to the dispensary.  

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

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

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

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

associates, the witness was specific in asserting that from the  

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

went to the Police Station first.  

14. The further significant thing about the FIR is that there  

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

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

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

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

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

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

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

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

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

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

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

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

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

members of the family of Krishnan were also seriously injured in  

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

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

time.  The significance of this omission will be considered when  

we individually consider the case of each accused.  The Trial  

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

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

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

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

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

went  to  the  Primary  Health  Centre  from  the  Police  Station  an  

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

serious condition and possibly could not have been treated in the

Primary Health Centre and, therefore, they had to be shifted to  

the other Hospital.   

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

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

Sunil  to Shashidharan  who was  accompanying the  injured in  the  

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

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

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

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

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

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

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

statement was recorded on 17.05.2004 in the evening.  He denied  

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

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

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

contradiction.  Other omissions were also proved in the evidence  

but they are all insignificant omissions.  Sushma was allegedly  

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

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

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

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

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

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

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

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

effect that he admitted that he had not stated before the police

that  Sushma’s brother  Dilip, Manoj,  Sunil and  one more  person  

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

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

friends.   It  was specifically  suggested that  Prabhu had  never  

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

also suggested that Prabhu had not disclosed about the assault by  

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

refuted those suggestions.   

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

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

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

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

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

this witness in the Ambulance Van would depend upon the evidence  

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

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

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

Chandak, Deepa had suffered as many as four contused lacerated  

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

lumber region with omentum protruding out and over left gluteal  

region.  

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

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

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

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

there can be no dispute about the presence of Deepa on the scene.

In her evidence Deepa asserted that she also knew the accused in  

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

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

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

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

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

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

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

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

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

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

intervene to save her brother.  Accused Dilip told accused Sunil  

and  the unknown  person to  take Prabhu  outside and  accordingly  

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

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

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

assault  Deepa  and,  therefore,  accused  Manoj  started  inflicting  

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

further  stated  that  Dilip  and  Manoj  rushed  towards  her  and  

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

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

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

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

entered the room and deceased Abhayraj also entered the room and  

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

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

dropped the knife in his hands and then accused Dilip and Manoj

left.  She also asserted that she had told the names of Manoj,  

Dilip and Sunil and one more unknown person when she telephoned  

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

Prabhu who was lying outside the front door calling ‘mummy mummy’.  

She, thereafter became unconscious and regained her consciousness  

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

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

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

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

extensively cross-examined as regards the topography of the place  

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

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

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

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

service she asserted that prior to the marriage of Prabhu with  

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

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

only.  She also asserted that after the marriage between Prabhu  

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

denied the suggestion that Dilip had never come to their house  

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

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

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

exchange the messages between Prabhu and Sushma.  She has also  

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

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

after the marriage.

20. Significantly  enough,  in  her  lengthy  cross-examination,  

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

This  witness  was  the  most  natural  witness  and  had  also  the  

opportunity to watch the dastardly attack and she had withstood  

her  cross-examination  extremely  well  insofar  as  the  attack  by  

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

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

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

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

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

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

had disconnected the electric supply and the telephone connection  

and  thereafter, the  incident took  place.  Again one  fantastic  

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

brother and Abhayraj had gone to Shivaji Nagar and consumed liquor  

and they quarreled there and Abhayraj was killed at Shivaji Nagar  

and  thereafter those  unknown persons  chased her  brother up  to  

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

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

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

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

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

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

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

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

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

police that accused Sunil and the unknown person took Prabhu out

of the room and she did not know as to why this fact is not  

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

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

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

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

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

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

statement that accused Sunil and one unknown person took Prabhu  

out of the room as stated.

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

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

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

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

were  staying almost  in her  neighbourhood.  Her assertion  that  

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

examination  and  has  not  been  explained  anywhere.   As  far  as  

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

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

called Sunil.  Merely because the witness had not stated that  

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

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

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

examination.   

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

identified the accused persons individually in the Court.  The  

argument is clearly incorrect.  If she had claimed that she had

known all the accused persons that could have been challenged in  

the  cross-examination  by  asking  her  to  identify  the  accused  

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

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

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

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

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

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

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

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

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

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

assaulting  Abhayraj  has  gone  almost  unchallenged.   There  is  

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

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

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

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

claim  has  also  not  been  disputed  nor  demolished  in  cross-

examination.  Very strangely, the cross-examination was directed  

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

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

cross-examination which was not permissible.  The whole evidence  

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

to unnecessarily implicate anybody else.  She has not assigned any  

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

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

only as regards Abhayraj that she has attributed the assault to

Sunil  against  him.   Her  whole  evidence  being  the  evidence  of  

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

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

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

is  supported  by  the  medical  evidence  which  evidence  we  will  

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

cannot accept the contention raised by Shri Agrawal that Manoj was  

not identified merely because his name did not appear specifically  

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

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

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

the assault.

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

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

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

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

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

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

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

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

the room at that time which version completely tallies with the  

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

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

deceased Prabhu who had been dragged outside.  She then asserted  

that accused Sunil chased Abhayraj who ran outside the house from  

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

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

No.2) and one more person had assaulted him with knife.  She has  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

spoken about any dying declaration having been made by Prabhu to  

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

probably  because  both  Deepa  and  this  witness,  Indira  were  

unconscious while Deepa regained her consciousness only in the  

Hospital.  This witness was very seriously injured and regained  

her  consciousness  after  quite  some  time.   The  only  cross-

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

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

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

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

witnesses to falsely implicate Sunil.  There is really no strained

relationship of this witness with Sunil at least shown in their  

cross-examination.  Under these circumstances, the witnesses would  

gain nothing by falsely implicating Sunil and Manoj.  There is  

absolutely  no  cross-examination  in  respect  of  the  identity.  

Therefore,  the  evidence  of  these  two  witnesses  was  rightly  

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

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

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

accused Sunil (accused No.2).

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

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

document  which  is  so-called  dying  declaration  of  Prabhu  dated  

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

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

strangely, this dying declaration was not brought forth on record  

by the prosecution.   The said dying declaration now having been  

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

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

signed by the Investigating Officer Kailash Bharve.  It bears a  

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

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

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

At that time accused Dilip and accused Manoj inflicted knife blows  

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

started assaulting them.  Further it is stated that while Dilip  

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

them.  He has also suggested that since he had married Dilip’s

sister Sushma, Dilip, Manoj and their other associates had entered  

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

pending before the High Court for confirmation, the accused filed  

an application under Section 391 of the Code of Criminal Procedure  

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

application.   In  that  application  production  of  additional  

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

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

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

prosecution and the same was suppressed from the defence before  

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

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

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

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

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

due to inadvertence, the said dying declaration was not confronted  

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

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

opposed  by  the  Public  Prosecutor  as  also  the  learned  counsel  

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

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

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

declaration was furnished to all the accused persons during the  

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

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

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

that in view of the strong opposition by Dilip (accused No.1) and

Manoj (accused No.3) to the application, the High Court was not  

inclined to exercise its discretion in favour of the appellant and  

on that ground the application stood rejected.   

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

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

were  in  the  nature  of  an  extended  trial.   The  confirmational  

proceedings are always the original proceedings.  The High Court  

was  dealing  with  the  accused  who  was  facing  death  sentence.  

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

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

opportunity was bound to be given by getting the document proved  

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

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

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

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

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

recorded the dying declaration was not confronted with that dying  

declaration, that opportunity could not have been denied before  

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

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

surprised  that  the  Public  Prosecutor  opposed  the  application.  

Fairness of the trial is the basic requirement in the criminal  

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

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

the production of the document.   

26. In a reported judgment Rampal Pithwa Rahidas & Others. v.

State  of  Maharashtra [1994  Supp  (2)  SCC  73] somewhat  similar  

situation occurred where this Court reiterated the duty of the  

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

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

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

knew  nothing about  the offence  and he  was unnecessarily  being  

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

Court took the view that though the witness was not confronted  

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

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

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

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

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

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

other  witnesses  like  the  Investigating  Officer  who  has  also  

counter singed the said dying declaration.  Shri Gaurav Agrawal  

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

further opportunity will have to be given even to accused Nos. 1

and  3  to  further  cross-examine  the  witnesses  as  the  dying  

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

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

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

facing death sentence awarded by the Trial Court and confirmed by  

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

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

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

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

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

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

not appear in the said dying declaration but in our considered  

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

the  evidence  of  the  eye-witness  completely  fixes  the  criminal  

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

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

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

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

the Appellate Court.

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

appellants  before  us  as  ordered  by  the  Sessions  Judge  and  

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

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

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

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

must,  at  this  juncture,  take  the  overall  circumstances  while

taking into consideration the death sentence awarded by the Courts  

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

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

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

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

Court  considered  the  following  circumstances  justifying  the  

imposition of death penalty”

“(a) Helpless victims

(b) Unarmed victims

(c) Victims woken from sleep at midnight

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

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

(f) Attack on every vital organ;

(g) Young boy Bijit was brutally assaulted;

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

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

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

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

31. The  High  Court  relied  on  the  judgment  of  Dhananjoy  

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

quoted extensively therefrom.  One other case Ronny alias Ronald  

James Alwaris & Ors. v. State of Maharashtra [1998 (3) SCC 625]

was also relied on by the High Court.  The High Court extensively  

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

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

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

(3) SCC 76].

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

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

mitigating circumstances, though such exercise has been done by  

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

circumstances considered by the Sessions Court are:

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

33. Shri Raj and Shri Gaurav Agrawal addressed us extensively  

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

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

pointed out that apart from the two circumstances considered by  

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

and  there being  no criminal  antecedents, there  were number  of  

other  mitigating  circumstances  which  the  Courts  below  had  not  

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

felt morally justified in attacking the family members due to the  

fact that his younger sister had revolted against the family and  

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

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

of his family.  It was also pointed out that since Manoj was the

resident of the same house, he also may have been persuaded to  

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

friend of Dilip.   

34. Learned counsel further argues that insofar as Manoj was  

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

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

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

murders  took  place.   Learned  counsel  further  argued  that  the  

deaths of Bijit and Abhayraj were in reality not the intended  

deaths  but they  became the  victims of  the circumstances  since  

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

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

prey  of  the  murderous  assault.   Perhaps  nothing  would  have  

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

room but also tried the stop the assailants from assaulting.   

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

was  not  there  in  the  beginning  but  he  being  the  immediate  

neighbour must have come attracted by the shrieks and lost his  

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

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

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

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

followed by Sunil and the unknown person.  Learned counsel also  

highlighted that the possibility of the said unknown person being  

responsible for the death of Abhayraj and Prabhu could not be  

ruled out since, as per the evidence of Deepa, Sunil and that

unknown person took Prabhu out and then it is not established as  

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

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

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

least for the murder of Prabhu and Abhayraj.  Learned counsel  

further highlighted the role of the unknown person and the fact  

that the said unknown person remained a mysterious part of the  

investigation and trial.  Therefore, it was ultimately urged that  

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

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

prosecution.   

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

that  the  accused  could  not  be  reformed,  particularly,  because  

their  antecedents  were  clean  or  at  least  the  prosecution  was  

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

of the accused persons.

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

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

attributed with the brutal attack.  Undoubtedly, Sunil did not  

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

merely attributed assault on Prabhu after Prabhu was dragged out  

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

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

allegation  regarding  Abhayraj  is  concerned,  learned  counsel  

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

to how many blows had been given on Abhayraj’s body and by whom.

Learned counsel pointed out that it was only one blow which was  

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

been because of the friendship between the other accused and Sunil  

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

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

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

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

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

time of incident.   

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

mitigating  circumstances  though  such  conscious  effort  does  not  

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

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

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

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

circumstances.  

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

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

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

repeat that the circumstance under which the murders took place,  

differ from case to case and there cannot be a straightjacket  

formula for deciding upon the circumstances under which the death  

penalty is a must.

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

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

can also be no doubt that he entered the house of the victims in

the dead of night.  Obviously, the visit was not intended to be a  

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

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

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

months  are  the  relevant  questions  which  must  attract  our  

attention.   

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

common experience that when the younger sister commits something  

unusual  and in  this case  it was  an intercaste,  intercommunity  

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

the elder brother who justifiably or otherwise is held responsible  

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

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

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

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

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

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

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

performed  with  Prabhu,  there  were  efforts  made  by  the  family  

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

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

other married sister Kalpana who actually went on to meet Sushma  

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

Sushma kept on attending the college thereby openly mixing with  

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

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

he wait for seven months?  The answer lies in the fact that Sushma

became pregnant and thus reached a point of no return.  Till such  

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

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

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

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

sufficient,  Dilip  himself  must  have  had  the  feeling  of  being  

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

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

which went on between Sushma and Prabhu for which Abhayraj acted  

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

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

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

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

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

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

undoubtedly was a young person not even having crossed his 25  

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

became the victim of his wrong but genuine caste considerations,  

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

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

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

these  social  issues  as  relevant,  while  considering  the  death  

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

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

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

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

psyche of the offender in the background of a social issue like an

inter-caste-community  marriage,  though  wholly  unjustified  would  

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

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

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

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

their minds by disfiguring the bodies.  The incident must have  

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

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

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

when  we  weigh  all  the  circumstances,  particularly,  about  the  

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

not justify the death sentence.   The disturbed mental feeling or  

the  constant feeling  of injustice  has been  considered by  this  

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

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

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

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

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

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

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

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

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

four persons were killed, two helpless ladies were also assaulted  

and very seriously injured and it is only because the accused  

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

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

this case, we must lean in favour of the death sentence.  In a

death sentence matter, it is not only the nature of the crime but  

the  background  of  the  criminal,  his  psychology,  his  social  

conditions and his mindset for committing the offence are also  

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

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

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

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

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

his judgment reported as  Santosh Kumar Satishbhushan Bariyar v.  

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

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

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

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

that the Court should not confine its consideration principally or  

merely to the circumstances connected with the particular crime  

but  also  give  due  consideration  to  the  circumstances  of  the  

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

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

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

follow  Bachan  Singh’s  case (cited  supra) and  the  principles

therein rather than following the narrow approach given in Ravji’s  

case (cited supra).

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

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

death  sentence.   Even  he  is  a  person  without  any  criminal  

antecedents and he appears to have joined the company of Dilip  

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

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

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

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

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

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

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

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

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

would be liable to be awarded the life imprisonment.

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

life imprisonment which is capable of resulting into 20 years of  

imprisonment  or  14  years  of  actual  imprisonment  may  not  be  

adequate punishment for these accused persons.  Considering the  

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

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

helpless  ladies  would  deserve  the  life  imprisonment.   But  we  

direct that they shall not be released unless they complete 25  

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

had not assaulted the helpless ladies nor had he taken part in the

assault  on Krishnan,  he deserves  the life  imprisonment in  the  

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

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

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

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

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

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

this Court after considering several cases held that such a course  

was permissible.  We accordingly dismiss these appeals, however,  

modifying the sentences as shown above.  The appeals are disposed  

off accordingly.

………………………..J.      [V.S. SIRPURKAR]

…………………… …..J.

[DEEPAK VERMA] NEW DELHI December 10, 2009.