BIMLA DEVI Vs. RAJESH SINGH & ANR.
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 173 - Report of police officer on completion of investigation
Section 302 - Punishment for murder
Section 147 - Punishment for rioting
Section 148 - Rioting, armed with deadly weapon
Section 452 - House- trespass alter preparation for hurt, assault or wrongful restraint
Section 354 - Assault or criminal force to woman with intent to outrage her modesty
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.
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