2009 Supreme(SC) 1827

2009(8) Supreme 108
SUPREME COURT OF INDIA
V.S. Sirpurkar and Deepak Verma, JJ.
Dilip Premnarayan Tiwari & Anr. — Appellants
versus
State of Maharashtra — Respondent
Criminal Appeal No. 1026 of 2008
Decided on : 10-12-2009

IMPORTANT POINT
Fairness of the trial is the basic requirement in the criminal Law
2. In a case of death sentence, Court must weigh the circumstances justifying the grant of death sentence vis-‘-vis the mitigating circumstances
3. Mere number of persons killed is not by itself a circumstance justifying the death sentence.

Headnote:Indian Penal Code ,1860 – Sections 302, 307, 452 read with Section 120B and Section 34 – Prosecution case that A.1,’s sister S fell in love with deceased P who used to live in neighbourhood of their residential house – Ultimately, she got married to P who being a Keralite and belonging to ‘Ezhava’ caste, the marriage was not approved of by family of S since she belonged to a Brahmin caste from the State of Uttar Pradesh – The whole family of S was extremely opposed to the marriage – Even though there were efforts to call back S into her familyfold. but she refused – Prosecution case that three appellants, and one more unknown person entered the house of deceased on the date of incident and caused his death and his family members and also injured two persons by assaulting them with knives – Original accused No.4, and accused No.5 were acquitted by Trial Court whereas the other three accused persons, were convicted – Since it was a death sentence matter, reference was made to the High Court for the confirmation of the death sentence and accused also filed appeals against their conviction and punishment therefor before the High Court- High Court confirmed the death sentence while the appeals of the accused persons were dismissed – Appeals thereagainst – Held clear cut eye –witness account by two injured witnesses was enough to convict accused persons – Evidence of these two witnesses was rightly believed by Trial Court as also by High Court – Evidence on record that dying declaration of deceased was not brought forth on record by the prosecution – The task of the Public Prosecutor is not only to secure conviction, he has a duty to the Court – He is an officer of Court and, therefore, in all fairness, firstly the document should have been brought on record and secondly, even if Doctor who recorded the dying declaration was not confronted with that dying declaration, that opportunity could not have been denied before High Court since the proceedings before the High Court were in the nature of original proceedings and an extended trial-Fairness of the trial is the basic requirement in the criminal Law-Hence Public Prosecutor ought not to have opposed the production of the document – Ordinarily, matter would have been sent back – However, since all the three accused persons were facing death sentence awarded by the Trial Court and confirmed by High Court – Hence held not proper to , increase the agonies of the accused persons by sending back matter to High Court – Conviction of all three appellants held proper (Paras 24 to 29)

        Indian Penal Code ,1860 – Sections 302, 307, 452 read with Section 120B and Section 34 – Three appellants, and one more unknown person entered the house of deceased on the date of incident and caused his death and his family members and also injured two persons by assaulting them with knives- Original accused No.4, and accused No.5 were acquitted by Trial Court whereas the other three accused persons, , 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-Since it was a death sentence matter, reference was made to the High Court for the confirmation of the death sentence and accused also filed appeals against their conviction and punishment therefor before High Court – High Court confirmed the death sentence while appeals of the accused persons were dismissed – Appeals thereagainst – Close scrutiny of judgment of High Court not showed any effort on the part of the High Court to consider mitigating circumstances, though such exercise had been done by Trial Court – S was the younger sister of A1 – It is a common experience that when the younger sister commits something unusual and in this case it was an intercaste, intercommunity marriage out of the secret love affair, then in the society it is elder brother who justifiably or otherwise is held responsible for not stopping such affair – It is held as the family defeat – At times, he has to suffer taunts and snide remarks even from persons who really have no business to poke their nose into affairs of the family – A1 must have been a prey of so – called insult which his younger sister had imposed upon his family and that must have been in his mind for seven long months – This was further aggravated because of the so – called higher status of a Brahmin family on the part of A1and so called non – Brahmin status of P – A1 undoubtedly was a young person not even having crossed his 25 years of life and not having any criminal antecedent – If he became the victim of his wrong but genuine caste considerations, it would not justify death sentence – No doubt, the murder was brutal but it was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies – Considering the overall circumstances, held that accused 1, and accused.3, deserved life imprisonment – Direction given that they shall not be released unless they completed 25 years of actual imprisonment – In case of A2, however, held that he deserved the life imprisonment in ordinary sense – He shall have to undergo the 20 years of actual punishment – Appeals dismissed. (Paras 40 to 45)

       Facts of the Case :

        Three appellants, and one more unknown person entered the house of deceased on the date of incident and caused his death and his family members and also injured two persons by assaulting them with knives. Original accused No.4, and accused No.5 were acquitted by Trial Court whereas the other three accused persons, 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. Since it was a death sentence matter, reference was made to the High Court for the confirmation of the death sentence and accused also filed appeals against their conviction and punishment therefor before High Court. High Court confirmed the death sentence while appeals of the accused persons were dismissed.

        2. Aggrieved appellants have preferred present appeals.

       Findings of the Court :

        Held clear cut eye-witness account by two injured witnesses was enough to convict accused persons. Evidence of these two witnesses was rightly believed by Trial Court as also by High Court. Evidence on record that dying declaration of deceased was not brought forth on record by the prosecution .The task of the Public Prosecutor is not only to secure conviction, he has a duty to the Court. He is an officer of Court and, therefore, in all fairness, firstly the document should have been brought on record and secondly, even if Doctor who recorded the dying declaration was not confronted with that dying declaration, that opportunity could not have been denied before High Court since the proceedings before the High Court were in the nature of original proceedings and an extended trial. Fairness of the trial is the basic requirement in the criminal Law. Hence Public Prosecutor ought not to have opposed the production of the document . Ordinarily, matter would have been sent back- However, since all the three accused persons were facing death sentence awarded by the Trial Court and confirmed by High Court. Hence held not proper to , increase the agonies of the accused persons by sending back matter to High Court. Conviction of all three appellants held proper.