Case: Dilip Premnarayan Tiwari  Vs. State Of Maharashtra

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 months imprisonment each for offence under Section 307 read with Section 34, IPC and three years rigorous imprisonment and to pay a fine of Rs. 1,000/- each, in default, to suffer one months imprisonment3. 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 us4. 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, Dilips 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, Dilip5. 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 Prabhus relatives house in Andheri and that is how Sushma was shifted to the house of Shashidharan, PW-2. Shashidharans wife was the sister of Prabhus mother, Indira. One Balan, PW-1 also used to live in Andheri. His wife was the third real sister of Prabhus mother, Indira6. The ghastly incident took place on the night of 16/17th May, 2004. On that day, Prabhus father Krishnan Nochil himself, his nephew Bijit, Prabhus 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, Prabhus 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 bachao7. 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 4O 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, Navghar8. 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 Sushmas brother Dilip, Manoj and Sunil and one more person had inflicted knife blows and had injured him and other persons of the family9. 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. Deepas statement came to be recorded on 18.05.2004 after she regained consciousness. Prabhus body was also sent for post-mortem10. 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

Reasoning:
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 imprisonment45. 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.