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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.

1. These appeals have been filed against a common judgment

and order dated 20.12.2007, passed by the learned Single Judge of

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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.

2. 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

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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.

3. 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

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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.  

4. 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.

5. 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

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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.

6. 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

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proved its case beyond reasonable doubt.

7. 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

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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.

8. 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

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Nath  Kumar,  but  subsequently  it  was  erased  and  in  its  place,

name of Bimla Devi wife of Lallan Tiwary was written.

9. 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

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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.

10.  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

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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.

11. 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.

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12.  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.

13.  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

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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.

14.  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

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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.

15. 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.