( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO.2 OF 2007 CONFIRMATION CASE NO.2 OF 2007 CONFIRMATION CASE NO.2 OF 2007 (Reference made by the Ad-hoc Sessions Judge Palghar) (Reference made by the Ad-hoc Sessions Judge Palghar) (Reference made by the Ad-hoc Sessions Judge Palghar) The State of Maharashtra (Through Manikpur Police Station, Taluka Vasai, District Thane) .. Appellant (Orig.Complainant) V/s 1. Dilip Premnarayan Tiwari Age 25 years, R/o Room No.444, Khatrinagar, Khairpada, Waliv, Taluka Vasai 2. Sunil Ramashray Yadav Age 20 years, R/o Waliv, Near Marathi School, Taluka Vasai, District Thane 3. Manoj Tulshi Paswan Age 22 years .. Respondents (Orig.Accused Nos.1 to 3) WITH WITH WITH CRIMINAL APPEAL NO.1086 OF 2006 CRIMINAL APPEAL NO.1086 OF 2006 CRIMINAL APPEAL NO.1086 OF 2006 (By original Accused Nos.1 & 3) (By original Accused Nos.1 & 3) (By original Accused Nos.1 & 3) 1. Dilip Premnarayan Tiwari & 2. Manoj Tulsi Paswan .. Appellants V/s The State of Maharashtra .. Respondent WITH WITH WITH CRIMINAL APPEAL NO.156 OF 2007 CRIMINAL APPEAL NO.156 OF 2007 CRIMINAL APPEAL NO.156 OF 2007 (By original Accused No.2) (By original Accused No.2) (By original Accused No.2) Sunil Ramashray Yadav .. Appellant V/s State of Maharashtra .. Respondent Mr.S.R.Borulkar, Public Prosecutor with Mr.A.R.Patil (APP) for the State. Mr.Ramakant Patil Sr.Counsel with Mr.Shivraj Patil for Respondent-Accused No.1 in Confirmation Case No.2/2007 (and for Appellant No.1 in Appeal No.1086/2006). Mr.S.N.Raj with Mr.S.L.Shukla for Respondent-Accused ( 2 ) No.2 in Confirmation Case No.2/2007 (and for the Appellant in Appeal No.156/2007). Mr.Sandesh D.Patil for Accused No.3 in Confirmation Case No.2/2007 (and for Appellant No.2 in Appeal No.1086/2006) CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. DATE OF RESERVING JUDGMENT : 27th August, 2007. DATE OF RESERVING JUDGMENT : 27th August, 2007. DATE OF RESERVING JUDGMENT : 27th August, 2007. DATE OF PRONOUNCEMENT OF JUDGMENT : DATE OF PRONOUNCEMENT OF JUDGMENT : DATE OF PRONOUNCEMENT OF JUDGMENT : 1st November, 2007. 1st November, 2007. 1st November, 2007. JUDGMENT: (Per Dr.S.Radhakrishnan, J) JUDGMENT: (Per Dr.S.Radhakrishnan, J) JUDGMENT: (Per Dr.S.Radhakrishnan, J) 1. The above confirmation case has been filed by the State of Maharashtra seeking confirmation of death penalty imposed upon the original Accused Nos.1 to 3 by the Additional Sessions Judge, Palghar, by his judgment and order dated 8th September, 2006 for the offence punishable under Section 302 read with Sectin 34 of the Indian Penal Code. Over and above, the accused have also been convicted for 10 years Rigorous Imprisonment and a fine of Rs.5000/- each for the offence punishable under Section 307 r/w 34 of the Indian Penal Code. In addition the accused have been convicted for 3 years Rigorous Imprisonment and a fine of Rs.1000/- each for the offence punishable under Section 452 r/w 34 of the Indian Penal Code. 2. Original Accused Nos.1 & 3 have challenged the above judgment and sentence by their Appeal Nos.1086/2006, and the original Accused No.2 has separately filed an Appeal No.156/2007 challenging the same. ( 3 ) 3. The brief facts are that one Prabhu and Sushma fell in love and got married and therefter they were staying with the parents of Prabhu. Prabhu belonged to a very low caste "Ezhava" from the State of Kerala whereas Sushma belonged to an upper caste of "Brahmin" from the State of Uttar Pradesh. Both the families of Prabhu and Sushma were staying at Khatrinagar, Khairpada, Waliv, Dist.Palghar. It appears that the family of Sushma were very much opposed to the said marriage and that there were a number of threats from the family of Sushma. The marriage between Sushma and Prabhu had taken place on 29th October, 2003 before the Registrar of Marriages, Bandra, Mumbai. Original Accused No.1 - Dilip Tiwari is the brother of Sushma and the original Accused Nos.2 & 3, viz.Sunil Yadav & Manoj Paswan are the friends of original Accused No.1-Dilip Tiwari. 4. It is the case of the prosecution that 5 to 6 years prior to the incident, Sushma and Prabhu developed intimacy with each other and started meeting frequently to each other, and the deceased Bachhu @ Abhayraj who was residing near the house of Tiwari family was acting as a messenger to exchange messages between the Prabhu and Sushma. After some days, when the accused Dilip and his mother Tulsidevi learnt about the love affairs between Sushma and Prabhu and that Bachhu was acting as a messenger, they threatened him not to enter their house. It is the case of the prosecution that on one ( 4 ) occasion accused Tulsi (mother of Dilip) had seen Sushma (her daughter) talking with Prabhu and on that count Accused Dilip had assaulted Sushma with kicks and fist blows, and had threatened to kill both Sushma and her lover Prabhu if they were to marry each other. Thus there was a strong opposition from Tiwari family to the love affair and the love marriage between Prabhu & Sushma, being an intercaste marriage. It is the further case of the prosecution that on 29th October, 2003 Sushma married with Prabhu in Bandra Court and at that time the relatives of Prabhu alone had attended that marriage and nobody from Tiwari family or their relatives were present. After the marriage Sushma started residing with Prabhu (Nochil family), and since last one year prior to the incident, Accused Manoj Paswan was residing alongwith Tiwari. Kalpana who is the elder sister of Sushma, is married and residing in District Kanpur. As per the prosecution case, it appears that the Sushma continued her education even after her marriage with Prabhu at Vartak College, Vasai. Accused Tulsi had once met Sushma in Vartak College and asked her to leave husband (Prabhu) and had told Sushma that her second marriage will be performed in Uttar Pradesh. Sushma had denied that proposal. It appears that 10 to 15 days prior to the incident Sushma’s sister Kalpana had tried to contact Sushma on phone and asked her to meet her outside the house, however, that phone was attended by Sushma’s mother-in-law Indira (Prabhu’s ( 5 ) mother), and the Indira had asked Kalpana to come to thier house to meet Sushma. As per the prosecution’s case on 8th May, 2004 Kalpana had again contacted Sushma on phone and thereafter met her in the College. Kalpana had told Sushma that her husband (Prabhu) was not smart and was not earning anything and further suggested Sushma to accompany her to their home town in Uttar Pradesh, where she had selected one youth serving in Air Force and that the Sushma should marry him. It appears that the Sushma had refused for that proposal and at that time the Sushma was pregnant. Even the Accused No.1 Dilip had also met Sushma once and had asked her to leave the house of her husband and stay with Tiwari family. Dilip had also threatened to kill her and the Nochil family (Prabhu’s family), whereupon, the Sushma had suggested Prabhu to lodge a complaint in the Police Station about all such threats, but the Prabhu had suggested Sushma that Dilip and others are her relatives and everything will be alright by the passage of time. Thereafter, due to threats from the Accused Dilip, Sushma had suggested Prabhu that they should go to their home town in Kerala, however, Prabhu suggested to stay in the house of his relative at Andheri and accordingly Sushma was shifted to the house of Shashindran (relative of prabhu - husband of Prabhu’s mother’s sister). Shashindran and Balan reside adjacent to each other at Andheri, and Prabhu’s mother Indira and the wives of Shashindran & Balan are the real sisters, and Bijit was ( 6 ) son of Balan. 5. On the night between 16th to 17th May, 2004 it is the case of the prosecution that the deceased Krishnan Nochil (father of deceased Prabhu), deceased Prabhu, deceased Bijit, witness Deepa (Prabu’s sister) and Indira (Prabhu’s mother) were sleeping in their house at Khairpada Waliv. At about 1.15 a.m. someone knocked the back side door of their house and when deceased Krishnan Nochil opened the door, Accused Dilip, Manoj, Sunil and one more person entered the house. Dilip and Manoj assualted Krishnan with knife over the chest, stomach, and when the Prabhu rushed to save his father Krishnan, Accused Dilip & Majoj also inflicted blows on Prabhu with knife over his stomach and chest. Dilip thereafter had asked accused Sunil and the unknown person to take Prabhu out of the house and kill him, and when Deepa started proceeding ahead to save her brother, Accused Dilip & Manoj armed with knife rushed towards her. At that time Bijit came there and he caught hold of Accused Manoj and urged him not to assault. On that accused Manoj inflicted blows with knife over the hand, chest, cheek of Bijit as a result of which Bijit fell down. As per the prosecution’s case, the accused Dilip & Manoj thereafter came near Deepa and inflicted blows with knife over her face and body, and when Deepa fell down, accused Dilip & Manoj thereafter assaulted Indira (Prabhu’s mother) with knife. At that time, accusd ( 7 ) Sunil who had taken out Prabhu, came back in that room and inflicted knife blows over the neck of Abhayraj @ Bachhu. Abhayraj immediately ran outside the house whereupon Accused Sunil chased him armed with the knife. Accused Dilip & Manoj therefter left the house and while leaving accused Manoj had dropped the knife in that room. It is the case of the prosecution that about 10 to 15 minutes thereafter, Deepa contacted Balan on phone and informed him the incident that accused Dilip, Manoj, Sunil and one more person had assaulted with knife to the family members. At the same time Indira (mother of Prabhu) went towards the front door. She opened the door and shouted "Bachav Bachav", but nobody came to their rescue. Prabhu who was lying in the injured condition in front of the said door was calling Indira as "Mammi Mammi". It is the case of the prosecution that the Head Constable Shri.Bhosale who was on bandobast duty at check post of Sativali Khind rushed to the spot upon being informed, and he also sent message to Manikpur Police Station to sent one Mobile Van. He saw Prabhu lying injured in front of door on the road, Indira lying injured near him, and also saw dead bodies of Bijit and Krishnan inside the house and Deepa lying injured. Shri.Bhosale then brought one tempo and sent injured Deepa, Indira and Prabhu to P.H.C.Navghar. At that time Prabhu’s relatives Shashindran, Balan and his wife who had reached the spot of incident at Khairpada Waliv they also noticed that Krishnan and Bijit were ( 8 ) dead. They also learnt that the injured were taken to Government Dispensary at Navghar. Shashindran and Balan then went to Navghar, and thereafter all the injured persons were taken to Bhagvati Hospital as they were very serious. Deepa and Indira were not in a condition to speak, however, Prabhu had disclosed to Shashindran that Sushma’s brother Dilip, Manoj, Sunil and one more person had inflicted knife blows over the family members including him. As per the prosecution’s case Prabhu succumbed to the injuries in the Bhagvati Hospital. As per the case of the prosecution, at about 5.00 a.m. Balan (relative of Prabhu) came to the Police Station and lodged a complaint about this incident. Accordingly, C.R.No.I-144/04 was registered at about 5.30 a.m. for the offences punishable under Sections 302, 307, 452, 34 of the Indian Penal Code. Thereafter the P.S.I. Shri.Barve had prepared the inquest panchanama of the dead bodies of Krishnan and Bijit at 6.00 a.m., he had also prepared the inquest panchanama of the dead body of Abhayraj who was lying near the K.T.Maidan and thereafter all the three dead bodies were sent to postmortem examination. Thereafter the investigating Officer had prepared the spot panchanama in presence of the panchas and seized one blood stained handkerchif, one blood-stained iron knife and also collected the sample of blood stains lying on the floor with the help of cotton swab. ( 9 ) 6. On 18.5.200 PSI Shri.Barve recorded the statement of injured Deepa at the Bhagwati Hospital, and on 27.5.2004 statement of Sushma came to be recorded. Thereafter, Accused Dilip was arrested on 29.5.2004 from Uttar Pradesh, and his statement came to be recorded under panchanama. Thereafter one knife, pant and shirt having blood stains were recovered at the instance of accused Dilip. Statement of injured Indira was recorded on 2.6.2004 in the hospital. Assused Sunil was arrested on 2.6.2004 and as per his disclosure statement made on 5.6.2004 memorandum panchanama was prepared and one knife and blood stained clothes were seized under panchanama at his instance. Accused Manoj was arrested on 22.6.2004. Accused Premnarayan (father of Dilip) and Tulsidevi were arrested on 25.6.2004, and thus after completion of investigation, the chargesheet was filed in the Court of J.M.F.C. at Vasai for the offences punishable under Sections 302, 307, 452, 34 and 120-B of the Indian Penal Code, and said offences u/s.302, 307 of the I.P.C. being triable exclusively by the Court of Sessions, the case was committed to the Sessions Court for further trial. It is the case of the prosecution that all the accused pleaded not guilty to the charge and claimed trial. All the accused had taken a defence that they have been falsely implicated in this case. The prosecution has examined 14 witnesses, while Accused Sunil has examined 2 defence witnesses. ( 10 ) 7. Mr.Borulkar, the learned Public Prosecutor for the State argued for confirmation of death penalty on all the three accused. Mr.Borulkar, the learned Public Prosecutor, at the outset, very fairly submitted that there were two mitigating circumstances, namely age of the accused, and no criminal antecedents. However, Mr.Borulkar pointed out that the age of the accused is not a mitigating circumstance as has been held by the Supreme Court. Mr.Borulkar, pointed out the following aggravating circumstances, justifying imposition of death penalty on the accused persons:- (a) Helpless victims (b) Victims totally unarmed (c) Victims woken up from sleep at midnight (d) Manner of inflicting injuries, 20-30 serious injuries on each of the deceased, whereas even a single injury would have been sufficient to kill, shows the barbarous attitude. (e) Attacking ruthlessly six persons, Deepa & Indira were let off presumed to be dead, seeking to wipe off the entire family. (f) Attacked on every vital organ. ( 11 ) (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 midnight 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 17.5.2004, i.e.after a lapse of seven months. As Dilip was totally opposed to the marriage, the above attack was highly pre-meditated and not at the heat of the moment. 8. The learned Public Prosecutor referred to the following judgments of the Supreme Court and our Court, dealing with the principles regarding the imposition of death penalty:- Dhananjoy Chatterjee Alias Dhana V/s.State of W.B.- 1994 Dhananjoy Chatterjee Alias Dhana V/s.State of W.B.- 1994 Dhananjoy Chatterjee Alias Dhana V/s.State of W.B.- 1994 SCC (Cri) 358 SCC (Cri) 358 SCC (Cri) 358, wherein the observations in Paragraph Nos.13 to 16 are relevant, which read as under:- "13. We have given our anxious consideration to the question of sentence keeping in view the changed legislative policy which is patent from section 354(3) CrP.C. We have also considered the ( 12 ) observations of this Court in Bachan Singh case- Bachan Singh V/s.State of Punjab - (1980) 2 SCC 684: Bachan Singh V/s.State of Punjab - (1980) 2 SCC 684: Bachan Singh V/s.State of Punjab - (1980) 2 SCC 684: 1980 SCC (Cri) 580." 1980 SCC (Cri) 580." 1980 SCC (Cri) 580." "14. In recent years, the rising crime rate - particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime, does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration." "15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." "16. The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous typy of barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18 years. If the security guards behave in this manner who will guard the guards? The faith of ( 13 ) the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case. We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts whiile considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl of 18 years, by the secury guard certainly makes this case a "rarest of rare" cases which calls for no punishment other than the capital punishment and we acordingly confirm the sentence of death imposed upon the appellant for the offence under section 302 IPC. The order of sentence imposed on the appellant by the courts below for offences under Sections 376 and 380 IPC are also confirmed along with the directions relating thereto as in the event of the execution of the appellant, those sentences would only remain of academic interest. This appeal fails and is hereby dismissed." Ronny alias Ronald James Alwaris and Others V/s.State of Ronny alias Ronald James Alwaris and Others V/s.State of Ronny alias Ronald James Alwaris and Others V/s.State of Maharashtra - (1998) 3 SCC 625, Maharashtra - (1998) 3 SCC 625, Maharashtra - (1998) 3 SCC 625, wherein paragraph No.47 reads as under:- "47. Considering the cumulative effect of all the factors, it cannot be said that the offences were committed under the influence of extreme mental or emotional disturbance for the whole thing was done in a pre-planned way; having regard to the nature of offences and circumstanes in which they were committeed, it is not possible for the Court to predict that the appellant would not commit criminal act of violence or would not be a threat to the society. A-1 is 35 years’ old, A-2 is 35 years’ old and A-3 is 25 (sic 27) years’ old. The appellants cannot be said to be too young or too old. The possibility of reform and rehabilitation, however, cannot be ruled out. From the facts and circumstances, it is not possible to predict as to who among the three played which part. It may be that the role of one has been more culpable in degree than that of the others and vice versa. Where in a ( 14 ) case like this it is not possible to say as to whose case falls within the "rarest of the rare" cases, it would serve the ends of justice if the capital punishment is awarded by the courts below under Sectin 302 read with Section 34 from death to life imprisonment. The sentences for the offences for which the appellants are convicted, except under Section 376(2) (g) IPC, shall run concurrently; they shall serve sentence under section 376(2)(g) IPC consecutively, after serving sentence for the other offences." Ediga Anamma V/s.State of Andhra Pradesh - AIR 1974 Ediga Anamma V/s.State of Andhra Pradesh - AIR 1974 Ediga Anamma V/s.State of Andhra Pradesh - AIR 1974 Supreme Court 799 Supreme Court 799 Supreme Court 799, wherein the relevant paragraph No.26 reads as under:- "26. Let us crystalise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 read with section 149, or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent ( 15 ) creed and accepting the trend against the extreme and irrevocable penalty of putting out life." State of U.P.V/s.Dharmendra Singh and Another - (1999) 8 State of U.P.V/s.Dharmendra Singh and Another - (1999) 8 State of U.P.V/s.Dharmendra Singh and Another - (1999) 8 SCC 325, SCC