Dilip Premnarayan Tiwari & Anr vs State Of Maharashtra

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.

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.

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.

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.