Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1033 of 2010, Judgment Date: Dec 16, 2015

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1033 OF 2010

BIMLA DEVI                                                       APPELLANT(S)

                                   VERSUS

RAJESH SINGH & ANR.                                             RESPONDENT(S)

                                    WITH
                   CRIMINAL APPEAL NOS. 1034-1036  OF 2010

BIMLA DEVI                                                       APPELLANT(S)

                                   VERSUS

LALOO TIWARI ETC.                                               RESPONDENT(S)

                                    WITH

                      CRIMINAL APPEAL NO. 1037 OF 2010

THE STATE OF BIHAR                                               APPELLANT(S)

                                   VERSUS

RAJESH SINGH                                                    RESPONDENT(S)

                                    WITH

                    CRIMINAL APPEAL NOS. 543-545 OF 2013

LALOO TIWARI & ORS.                                              APPELLANT(S)

                                   VERSUS

STATE OF BIHAR                                                  RESPONDENT(S)


                               J U D G M E N T
Pinaki Chandra Ghose, J.
These appeals have been filed against a  common  judgment  and  order  dated
20.12.2007, passed by  the  learned  Single  Judge  of  the  High  Court  of
Judicature at Patna in Criminal Appeal Nos.371, 386, 441 and  447  of  2002.
By the impugned judgment the learned Single Judge of the High  Court,  while
allowing the appeal of one of the accused Rajesh Singh and  acquitting  him,
dismissed the appeals of the other four accused, namely, Laloo Tiwary,  Lala
Tiwary, Uma Shankar Tiwary and Pramod Tiwary  and  upheld  their  conviction
and sentence as awarded by the Trial Court. Criminal Appeal  Nos.543-545  of
2013 are filed by the aforesaid four accused against  their  conviction  and
sentence by the two Courts below and      Criminal Appeal  Nos.1034-1036  of
2010 are filed by the informant Bimla  Devi  W/o  late  Lalan  Tiwary,   for
enhancement of the sentence of these accused.  Criminal  Appeal  No.1033  of
2010  filed by the informant and Criminal Appeal No.1037 of  2010  filed  by
the State, are against the acquittal of the accused Rajesh Singh.

The  brief  facts  necessary  to  dispose  of  these  appeals  are  that  on
20.12.1998 at 4:30  PM,  the  informant  Bimla  Devi,  resident  of  Village
Mangara, P.S. Karakat, District Rohtas, recorded her  statement  (fardbeyan)
at P.S. Karakat, alleging that at 2:00  PM,  her  father-in-law  Kashi  Nath
Tiwary and her husband Lallan Tiwary were shot dead at their  house  by  the
assailants, namely, Uma Shankar Tiwary, Laloo Tiwary,  Pramod  Tiwary,  Lala
Tiwary amd Dipendra Tiwary @ Turhi and 2 other unnamed assailants. The  dead
body of Kashi Nath Tiwary was dumped into  the  well  located  in  front  of
their house. The informant further alleged that the  accused  also  snatched
away the jewellery of the informant, her  daughter  and  her  sister-in-law.
Out of the two unnamed assailants, one was named as Rajesh  Sharma  and  the
name of the other assailant was never known.

After investigation  was  concluded,  the  Investigation  Officer  submitted
charge-sheet against accused Uma Shankar Tiwary, Laloo Tiwary, Kamal  Narain
Singh, Dipendra Tiwary @ Torhi, Pramod Tiwary and Lala Tiwary, for  offences
punishable under Sections 147, 148, 149, 341, 342, 323, 452,  379,  302  and
201 of the Indian Penal Code, 1860 (“IPC” for short) and Section 27  of  the
Arms Act. Thereafter a supplementary  charge  sheet  was  submitted  against
accused Rajesh Kumar Singh under  the  aforesaid  sections  and  also  under
Section 354 of IPC. The case was committed to the Court of Sessions.  During
the pendency of the trial, accused Dipender Tiwary was  held  juvenile,  his
case was separated and sent to the Juvenile Justice Court. The charges  were
read over and explained to the accused persons, they pleaded not guilty  and
claimed for trial.

The Trial Court by its judgment and order dated  13.05.2002,  convicted  the
accused and sentenced them to rigorous  imprisonment  for  life.  The  Trial
Court convicted Uma  Shankar  Tiwary,  Laloo  Tiwary,  Pramod  Tiwary,  Lala
Tiwary, Rajesh Singh and Kamal Narain  Singh  for  offences  under  Sections
302/34, 201, 148 and 452 of IPC and sentenced them to rigorous  imprisonment
for life  for  the  offence  under  Section  302/34  IPC,  further  rigorous
imprisonment for four year for offence under Section  201,  imprisonment  of
four years for offence under Section 452 and rigorous imprisonment  for  six
months for offence under Section 323 IPC. Uma Shankar Tiwary,  Laloo  Tiwary
and Pramod Tiwary were further sentenced to pay a fine of Rs.10000/- each.

Four different appeals were filed before the  High  Court  by  five  accused
persons against the aforesaid conviction  order.  The  sixth  accused  Kamal
Narain Singh is absconding against which permanent Warrant of Arrest in  red
ink has been issued. The High Court allowed the  appeal  of  accused  Rajesh
Singh and acquitted him of all  the  charges.  However,  the  conviction  of
other four accused, namely, Uma Shankar Tiwary, Laloo Tiwary, Pramod  Tiwary
and Lala Tiwary was  upheld  by  the  High  Court  and  their  appeals  were
dismissed.

The Trial Court convicted  the  accused/respondents  on  the  basis  of  the
evidence of nine prosecution witnesses and  also  the  documentary  evidence
which supported the prosecution story. However, in  appeal  the  High  Court
pointed out that the informant neither named accused  Rajesh  Singh  in  the
fardbeyan nor in the police statement. It was only  after  about  two  years
that the accused Rajesh Singh was named before the  Court.  The  High  Court
further stated that the other independent witnesses did not identify  Rajesh
Singh in the Court, even when they identified the other  four  accused.  The
High Court, thus, deemed it proper to give benefit of doubt to  the  accused
Rajesh Singh. Hence, his conviction was set aside and he  was  acquitted  of
all the charges. As against the other accused, the High Court was  convinced
that the prosecution had proved its case beyond reasonable doubt.

The Trial Court  finding  enough  evidence  against  accused  Rajesh  Singh,
convicted him for the double murder. However, the  High  Court  pointed  out
that accused Rajesh Singh was  nowhere  named  in  the  FIR  or  the  Police
statement and his alleged role was testified only at the trial stage,  after
about more than 2 years of the incident. The High Court  thus  extended  the
benefit of doubt to this accused. Upon perusal of  the  records,  especially
the testimony of the eye witnesses, we find no infirmity  in  the  reasoning
of the High Court.  Out of  the  six  material  eye  witnesses,  three  were
related to the accused. PW3 was the daughter  of  the  deceased  Kashi  Nath
Tiwary, PW4 was the daughter of deceased Rajendra  Prasad  Tiwary  @  Lallan
Tiwary, and PW6 - informant was the wife  of  deceased  Lallan  Tiwary.  The
other three eye witnesses, i.e. PW1, PW2 and  PW7,  were  from  the  village
where the occurrence took place and they happened to  be  chance  witnesses.
However, in each of the witnesses' statements, the name  of  the  respondent
Rajesh Singh does not appear until testimony  before  the  Court.  The  four
related witnesses in their cross-examination  stated  that  they  had  named
Rajesh Singh as one of the accused in the  FIR  and  the  police  statement.
However, no explanation can be gathered as to how one name could  be  missed
when all the other five accused were named categorically. Moreover,  if  the
testimony of the other three unrelated witnesses is  perused,  none  of  the
witnesses named the respondent Rajesh Singh directly and they did  not  even
identify accused Rajesh Singh in the Court at the time of trial  while  they
specifically recognized the other accused present in the Court. Thus,  there
is no infirmity in the High  Court's  order  that  the  respondent/  accused
Rajesh Singh is entitled to benefit of doubt  as  the  prosecution  has  not
been able to bring home the charge against him.

Accused persons (appellants in Criminal Appeal Nos.543-545 of  2013)  argued
on the same grounds which were categorically dealt with in  details  by  the
High Court which are mainly two: Firstly, that the FIR was not sent  to  the
Court within time and so the correct version had  not  come  out;  Secondly,
that there exists cutting/overwriting in the inquest report  as,  initially,
the name of the informant was noted as Bunni Kumari daughter of Bishwa  Nath
Kumar, but subsequently it was erased and in its place, name of  Bimla  Devi
wife of Lallan Tiwary was written.

The above two arguments were also pleaded before the Trial Court as well  as
the High Court, and both the Courts below denied the averments and  reasoned
that the two errors did  not  prejudice  the  investigation.  Moreover,  the
prosecution case was supported by  six  strong  and  cogent  eye  witnesses,
which was further corroborated by the  medical  evidence  and  the  recovery
memos.  The  High  Court  perused  the  testimony  of  PW9,   who   is   the
Investigating  Officer,  wherein  it  was  deposed  that  he  recorded   the
statement (fardbeyan) at 4:30  PM,  thereafter  he  went  to  the  place  of
incident and the body of deceased Kashi Nath Tiwary was recovered  from  the
well after one hour of his arrival, and the inquest  and  other  proceedings
were conducted. Hence, he stated that FIR was lodged at about 9:00  PM.  The
witness further stated that the FIR  was  sent  to  the  Magistrate  through
Special Messenger on 22.12.1998. Although it is true that delay  in  sending
the FIR to the magistrate can vitiate the investigation, but it  is  settled
position that a cogent reasoning can override this  procedural  lacunae.  It
is an accepted fact that there was a delay of one day in  sending  the  FIR.
However, no motive in manipulating with the FIR was proved. The  prosecution
case is strongly backed by testimonies of the six  eye  witnesses  who  have
testified the incident in almost similar terms. A procedural  lapse  in  not
sending the FIR promptly, did not prejudice the present case.

 The next factual lacunae raised was overwriting in the inquest report.  The
inquest report by the police officer is prepared under Section  174  of  the
Code of Criminal Procedure, 1973. The scope of the section is  investigation
by the police in cases of unnatural or suspicious death. However, the  scope
is very limited and aimed at ascertaining the first apparent  signs  of  the
death. Apart from this the police  officer  has  to  investigate  the  place
wherefrom the dead body is recovered, describe  wounds,  fractures,  bruises
and other marks of injury as may be found  on  the  body,  stating  in  what
manner or by what weapon or instrument, such injuries appear  to  have  been
inflicted. From the above, it thus becomes clear, that the section  aims  at
preserving the first look at the recovered body  and  it  need  not  contain
every detail. Mere overwriting in  the  name  of  the  informant  would  not
affect the proceedings. The fact of homicidal death was not in  dispute  and
the manner in which the death  was  occurred  is  also  not  disputed.  Then
merely name being overwritten will not help the defence, when  the  contents
of the inquest report was supported  by  the  eye  witnesses  and  also  the
medical evidences.

The accused have  not  raised  any  other  argument  in  their  favour.  The
testimonies of each of the six witnesses have been proved  and  corroborated
by the other. The more or less similar testimonies stood the test of  cross-
examination by the defence and they were  unshaken  throughout  the  present
case. No doubt the three witnesses were related to the  deceased  but  their
presence  was  very  natural  and  each  explained  good  details   of   the
occurrence. The other three villagers who saw the  incident  seemed  natural
and also explained their presence at or about the  place  of  the  incident.
The conduct of each of  the  witnesses  preceding  the  incident,  was  also
natural and their occurred no time gap in reporting the crime to the  police
so as to exclude any possibility of tutoring or manipulation.

 The informant has vehemently argued that in the facts and circumstances  of
the  case,  imposition  of  death  penalty  was  imperative.  The  informant
supported her argument by stating that  the  accused  had  preplanned  their
attack and executed the same in a most gruesome manner.  The  fact  that  41
pelletes were recovered from each of the body of the deceased,  demonstrates
the gruesomeness of the crime. The accused continued their  assault  on  the
corpse of the deceased Kashi Nath Tiwary by throwing it into  the  well  and
then throwing bricks, stones and flower pots in the well.

 The Trial Court was also  faced  with  similar  argument  at  the  time  of
awarding the  sentence.  However,  the  learned  Additional  Sessions  Judge
reasoned that although it is a  case  is  of  double  murder,  but  all  the
convicts have not participated in the  murder  of  both  the  deceased.  The
incident is not a stray incident but a  common  occurrence  we  see  in  the
society in the prevalent era, where the  motive  was  proved  to  be  family
feud. The learned Additional Sessions Judge deemed  it  fit  and  proper  to
uphold the right of life and liberty of  the  accused  over  awarding  death
sentence to the convict, since it not only affects the accused's rights  but
also would have made their dependents  orphan.  Hence  a  lenient  view  was
taken. The High Court was posed with any such  argument  of  enhancement  of
sentence of the accused, thus the High Court did not give any  such  reason.
Although the sentence awarded to the four accused was upheld  in  toto.  The
above fact that the enhancement of sentence was not  challenged  before  the
High Court is a cogent reason not to entertain such a plea  at  this  stage,
however, we are of a considered view to scale this argument in light of  the
laws on this subject.

 This Court has time and again reiterated that in criminal jurisprudence  in
our country,  life  imprisonment  is  the  rule  and  death  penalty  is  an
exception. It is equally settled law that death penalty can only be  awarded
in rarest of the rare cases. No doubt each case of murder  is  gruesome  and
barbaric, however,  the  right  of  life  of  even  an  accused  has  to  be
respected. In the present case, it  an  admitted  fact  that  their  existed
previous enmity between the families of the deceased and  the  accused.  The
accused were also proved to be from the same village who are neither  having
any criminal antecedents nor they  are  history-sheeters.  The  case  is  an
apparent example of family feud gone horribly wrong.  The  accused  are  not
posing any danger to society at large. This Court is,  thus,  inclined  that
the present case is not within the category of rarest of the rare cases  and
hence we need not burden ourselves with scaling each and  every  aggravating
and mitigating  circumstances. The sentence awarded by the Courts  below  is
adequate for the accused to introspect and also sufficient for  the  society
to heal its wounds.

Thus, in the light of the above discussion, we find no grounds to  interfere
with the judgment passed  by  the  High  Court.  These  eight  appeals  are,
accordingly, dismissed.

                                      …....................................J
                                                      (Pinaki Chandra Ghose)



                                       …...................................J
                                                              (R.K. Agrawal)
New Delhi;
December 16, 2015.