Madhya Pradesh High Court
In Reference vs Mahendra Tiwari on 12 January, 2017
Author: S.K. Gangele
Bench: S.K. Gangele
34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
CRRFC No.03 of 2016
In reference appellant
versus
Mahendra Tiwari respondent
CRA No.2342 of 2016
Pavan Tiwari and another appellants
versus
The State of Madhya Pradesh respondent
CRA No.2346 of 2016
Mahendra Tiwari appellant
versus
The State of Madhya Pradesh respondent
Coram :
Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Subodh Abhyankar
===========================================
Shri Ajay Shukla, Government Advocate for the State
in all the three cases.
Shri Sankalp Kochar, counsel for the respondent in
CRRFC-03-2016 and counsel for the appellants in CRA
No.2342-2016 and CRA No.2346-2016.
===========================================
Reserved on :27.10.2016
*********
JUDGMENT
(Pronounced on :12.01.2017) Per S.K. Gangele, J.
The death reference has been referred by the trial Court because the Court has awarded a sentence of death to 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 accused/appellant Mahendra Tiwari. The appellants Pawan Tiwari, Saroj Tiwari and Mahendra Tiwari have also filed criminal appeals. All the three cases are heard together.
2. Deceased Priya Tiwari died after receiving burn injuries. She was taken to the nearby hospital Amanganj by her mother-in-law and other persons, from where she was referred to Katni, thereafter, to Jabalpur. Before reaching Jabalpur, she died. The mother-in-law of the deceased informed the Police Station Amanganj on 10.12.2014 that she received information from her sister-in-law (devrani) Parvati Bai that smoke was coming out from the house of her daughter-in-law, then she had reached at the house of her daughter-in-law, then she came to know that her daughter-in- law received burn injuries. Thereafter, she had taken her daughter-in-law alongwith other family members to Government Hospital, Amanganj, thereafter, to Katni and Jabalpur. Ten kilometers before Jabalpur, her daughter-in-law died. Hence, information is submitted.
2. The police registered merg on 10.12.2014 Ex.P/20. Report of the incident was lodged on 13.12.2014. The police conducted investigation, recorded statements of witnesses and filed charge-sheet against the accused persons/appellants for commission of offences punishable under Sections 302/34 and 201 of the Indian Penal Code.
34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016
3. The trial Court framed charges against the accused persons/appellants for commission of offences punishable under Sections 302/34 and 201 of the Indian Penal Code. The accused persons/appellants abjured their guilt and pleaded not guilty. The trial Court, after trial, has held the appellants guilty and awarded a sentence of death to the husband of the deceased/Mahendra Tiwari and life sentence to the mother- in-law of the deceased/Smt. Saroj Tiwari and the brother-in- law of the deceased i.e. younger brother of the husband of the deceased/Pavan Tiwari.
4. The trial Court relied on the statements of the family members of the deceased and some other prosecution witnesses who deposed that the deceased had told them that accused persons/appellants had sprinkled petrol and set her ablaze.
5. The counsel for the appellants has submitted that oral dying declaration of the deceased, which is said to be given by her to her family members and other persons, is not reliable. The evidence of the witnesses is also not reliable. It is contradictory to the evidence of other prosecution witnesses. The conviction is based on circumstantial evidence, however, the chain is not complete and the witnesses were not present at the place as deposed by them. He has further submitted that the deceased herself set her on 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 fire and the family members had taken her to the hospital. Hence, the judgment passed by the trial Court is contrary to the evidence on record and the prosecution has failed to prove the guilt of the accused persons/appellants beyond reasonable doubt. Learned counsel has further submitted that the trial Court has further committed an error of law in awarding death sentence to the husband of the deceased. The case is not rarest of rare case in which sentence of death be awarded. In support of his contentions, learned counsel has relied on the following judgments:
(a) Subhash and another vs State of U.P., AIR 1976 SC 1924;
(b) Shankarala Gyarasilal Dixit vs State of Maharashtra, AIR 1981 SC 765(1);
(c) Mohanlal Gangaram Gehani vs State of Maharashtra, AIR 1982 SC 839;
(d) Ramsai and others vs State of M.P., AIR 1994 SC 464;
(e) Baldev Raj vs State of H.P., AIR 1980 SC 436;
(f) Sadaram, son of Gurbux Kalar vs The State of Madhya Pradesh, 1971(3) SCC 443;
(g) Sunder Singh vs State of Uttaranchal, (2010) 10 SCC 611;
(h) Arun Bhandudas Pawar vs State of Maharashtra, (2008) 11 SCC 232;
(i) State of Rajasthan vs Shravan Ram and another, (2013) 12 SCC 255;
(j) Sudarshan and another vs State of 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 Maharashtra, (2014) 12 SCC 312;
(k) State of Haryana vs Ved Prakash, (2008) 13 SCC 268 and;
(l) Heikrujam Chaoba Singh vs State of Manipur, (1999) 8 SCC 458.
6. Learned Government Advocate for the State has submitted that the prosecution has led cogent evidence to prove the guilt of the accused persons/appellants beyond reasonable doubt. The deceased had told the witnesses that accused persons/appellants after sprinkling petrol on her set her ablaze. This fact has been proved from circumstantial evidence also. The deceased received burn injuries. The trial Court appreciated the evidence properly and awarded a proper sentence.
7. PW-1 Halke Adiwasi is the witness of seizure and the memorandum. He denied the fact that any seizure (Ex.P1) was made before him or any memorandum was given by the accused. He is the witness of seizure of plastic cane in which it is said that the petrol was stored. He was declared hostile.
8. PW-2 Dr. M.K. Gupta was the doctor, who had first examined the deceased when she was brought at Community Health Center, Amanganj and thereafter, he had conducted the postmortem. His evidence shall be considered in detail subsequently.
9. PW-3 Girdhari Lal is the the Constable who had taken 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 the dead body of the deceased to Community Health Center, Amanganj for postmortem and after postmortem the dead body was handed over to the husband of the deceased/Mahendra Tiwari. Under garments of the deceased were seized before this witness and seizure memo Ex.P/6 was prepared.
10. PW-4 Smt. Prabha Devi is the mother of the deceased. She deposed that marriage of the deceased was solemnized with accused Mahendra Tiwari 12 years before. She received information in Amanganj from Ashish that her daughter had received burn injuries. She came alongwith her younger son and met with the deceased near petrol pump at Amanganj. At that time, in-laws of the deceased were taking the deceased for treatment. They had taken her to Katni, then to Jabalpur. She deposed that she accompanied them and her daughter told her on the way that her husband had beaten her by a plas and her husband Mahendra Tiwari, younger brother of the husband Pavan Tiwari and mother-in-law Saroj Tiwari had sprinkled petrol on her and set her ablaze and thereafter, locked her in the kitchen. The deceased was examined by the doctor at Jabalpur at 9 O'Clock. The, doctor advised to take the deceased back because the deceased was died. Thereafter, body of the deceased was taken to Amanganj. The deceased was given cruel treatment in her in-laws' house by her 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 husband, brother-in-law and mother-in-law. The husband of the deceased and his younger brother both used to drink. In her cross-examination, she admitted the fact that deceased had two children, one daughter Kajal Tiwari, aged about 10 years and one son Diwakar Tiwari, aged about 9 years, daughter Kajal Tiwari was living with her grandmother/accused Smt. Saroj Tiwari and son was living with her. She admitted the fact that Prem Shankar Tiwari had given her Rs.50,000/- to deposit in the name of son of the deceased namely Diwakar Tiwari. She further deposed that the deceased used to come to her house once in a month and she always used to tell about the cruel treatment meted out to her. In para 11 of her cross-examination, she admitted the fact that in her statement Ex.D/1, recorded by the police, it is mentioned that the husband had sprinkled petrol on her and set her ablaze. She further admitted the fact that she did not lodge any report at the police station. She denied the suggestion that deceased caught fire when she was cooking on a gas in the kitchen and that the deceased died due to accident.
11. PW-5 Ashish Payasi is the brother of the deceased. He also deposed that the marriage of the deceased was solemnized with the accused/appellant Mahendra Tiwari 11 years before. He further deposed that on the date of incident, 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 he had gone to Amanganj Market where he got information that his sister received burn injuries. He immediately rushed to the hospital at Amanganj and noticed that his sister was taken out from the hospital on a stretcher and the doctor administered one injection and advised to take the deceased to Katni. Alongwith the deceased, in a jeep, mother-in-law of the deceased, Sudama, who was the bhanja of Smt. Saroj and Prem Shankar, who was the brother-in-law of Smt. Saroj, were there. Thereafter, he informed his father and then his mother reached at Amanganj Petrol Pump alongwith younger brother of the deceased and she had also gone alongwith the deceased. He specifically deposed that he had inquired from the deceased, "how this has happened." Then, she told me that her husband, brother of the husband and the mother of the husband had beaten her and, thereafter, they sprinkled petrol on her and set her ablaze and locked her inside the kitchen and ran away. He admitted the fact that an iron rod and a burnt petrol cane were seized by the police before him. The map is Ex.P7 and the seizure memo is Ex.P8. He denied the fact in his cross-examination that nurse administered the injection to the deceased. He further deposed that he had talked with the deceased at Amanganj and he stayed with the deceased for 15 to 20 minutes at Amanganj.
34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016
12. PW-6 Mahesh Prasad Adiwasi turned hostile. He denied the fact that any seizure Ex.P2 was made before him on the basis of memorandum Ex.P1.
13. PW-7 Anil Pathak deposed that he had seen Ashish, who is the brother of the deceased, running at Amanganj market and he inquired him that what has happened, then he told that his sister received burn injuries. He further deposed that he accompanied Ashish to Amanganj Hospital and there the deceased was on stretcher and she told me, "brother save me, Mahendra, Pavan and Saroj had set me ablaze." He admitted the fact that he and Ashish are the residents of the same village.
14. PW-8 Rajesh Payasi is the father of the deceased. He in his evidence deposed that his son had told him that deceased received burn injuries and he also told him that deceased was crying and telling that the accused persons/appellants had set her ablaze. He denied the fact that any article was seized from the jeep. On this point, he was declared hostile. He admitted that he had signed Ex.P11. He further deposed that accused persons/appellants had treated the deceased with cruelty.
15. PW-9 Manoj Upadhyay, who is a photographer, deposed that he is resident of village Pagra which is the village of mother and father of the deceased. On the date of 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 incident, he had come to Amanganj and he had also gone to the hospital and at that time he inquired from the deceased that what had happened then she told him that Mahendra, Pavan and Saroj had set her ablaze after sprinkling petrol. He further deposed that he had taken photographs of the deceased.
16. PW-10 Ram Shiromani Pandey is the Assistant Sub- Inspector, who had arrested the accused Pavan Tiwari on 13.12.2014 and prepared the arrest memo Ex.P12.
17. PW-11 Brijendra Kumar Mahdele is the Patwari, who has prepared the map Ex.P13.
18. PW-13 Ram Autar Pateriya is the Assistant Sub- Inspector who recorded the merg and information of death of the deceased vide Merg No.59/2014 on the basis of information given by accused Saroj Tiwari, mother-in-law of the deceased.
19. PW-14 Vasudev Prasad Tiwari is the neighbour of the deceased. He deposed that his house is at the backside of the house of the deceased. At around 4-5 O'Clock in the evening, Shyam Sundar cried that smoke was coming out from the house of Mahendra Tiwari and, thereafter, "I rushed to the house of Mahendra Tiwari, the gate was closed, I pushed the gate and entered the room, at that time, deceased Priya came out and her hands were up, she was burnt badly, then I asked 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 my son Arjun to bring a bora (sack) and then Shyam Bihari also came and, thereafter, other persons also came and then her in-laws had taken the deceased to the hospital."
20. PW-15 Shyam Sundar Tiwari deposed that he had seen smoke coming out from the house and, thereafter, he had called Arjun Tiwari and he had gone inside the house, at that time, deceased was lying. Then, uncle of Mahendra Tiwari namely Prem Shankar Tiwari took a vehicle jeep and they had taken the deceased to the hospital. Other family members were not in the house. He had admitted the fact that Pavan Tiwari and Saroj Tiwari had been living separately from the deceased. He further deposed that the deceased died when she was preparing tea.
21. PW-16 Vishnu Kumar Pidha is also a neighbour. He deposed that he had accompanied the deceased and family members upto Amanganj Hospital where an injection was administered and the deceased was referred to Katni.
22. PW-17 Ram Sushil Shukla was also declared hostile. PW-18 Shyam Bihari Tiwari is also a hostile witness. He deposed that he had seen the deceased at the time of incident when she received burn injuries.
23. The prosecution examined total 18 witnesses before the trial Court.
24. PW-12 Mr. S.S. Baghel conducted the investigation.
34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 He deposed that he had conducted investigation about the death of the deceased and prepared panchnama of the dead body of the deceased Ex.P10. He further deposed that he had seized a bag of joot vide Ex.P11 and also prepared the map, which is Ex.P7. He had recorded the FIR Ex.P14 and also seized plain soil (sada mitti) and blood stained soil from the kitchen and thereafter, 'plas' and 'pikiya' were also seized vide seizure memo Ex.P2. Saroj Tiwari was arrested vide Ex.P15 and Mahendra Tiwari was arrested vide Ex.P16. He further deposed that he had recorded the statements of the witnesses and sent the seized articles to FSL Sagar vide Ex.P17 and received the FSL reports which are Ex.P18 and Ex.P19. He in his cross-examination admitted the fact that he cannot say that on which seized article he found smell of petrol. He admitted the fact that in the panchnama of dead body Ex.P10, he did not mention that there was any injury on the person of the body of the deceased. He admitted the fact that accused Pavan and Saroj were living separately from the deceased. He further admitted the fact that there was a partition in the house. He denied the fact that any report was lodged before the incident by the family members of the deceased against Mahendra Tiwari.
25. PW2-Dr. M.K. Gupta was posted as Medical Officer on 10.12.2014 at Community Health Center, Amanganj. He 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 deposed that at around 4:15 in the evening, one person told him that one lady received burn injuries and, thereafter, when he came out, one vehicle came and he had seen a lady in the vehicle. The persons told him that the lady had received burn injuries. They further told him that they want to take the deceased for treatment outside and requested him to administer injection of pain killer. He further told that he advised them to take the deceased to District Hospital, Panna. The lady was in the jeep. In his cross-examination he further deposed that on his instructions, nurse administered the injection to the deceased but no prescription of treatment was issued by the hospital. He denied the fact that the brother of the deceased met him. He further deposed that he had conducted postmortem of the deceased. He noticed that deceased received 96% burn injuries. The larynx and trachea were congested and the smoke particles were present in the trachea. He further deposed that he had seized the underwear of the deceased and the hair of the head of the deceased and had handed over the same to the Constable. The deceased was died due to shock received by her from burn injuries. In his cross-examination, he admitted the fact that he did not mention the fact in postmortem report Ex.P3 that from the dead body of the deceased smell of petrol was coming neither from the cloths of the deceased smell of petrol was 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 coming. He further deposed that if he had noticed the smell of petrol on cloths then he must have mentioned the aforesaid facts. He further deposed that he did not notice any injury except burn injuries on the person of the body of the deceased, neither any injury was reported by him except burn injuries. The persons did not told him how deceased received burn injuries, there may be an accident.
26. The FSL reports are Ex.P18 and Ex.P19. As per the reports, there was light smell of petrol on Ex.B and Ex.F which were under garments of the deceased. In the plastic cane, which was Ex.G, there was smell of vegetable oil. On Ex.B and Ex.F, some residuary articles of petrol were found, however, on Ex.A, Ex.C, Ex.E, Ex.G and Ex.H no particles of inflammable petroleum hydrocarbon (diesel/kerosene/ petrol) were found.
27. The trial Court has placed reliance on the evidence of PW-4 Smt. Prabha Devi, who is the mother of the deceased, PW-5 Ashish Payasi, who is the brother of the deceased, PW- 7 Anil Pathak, PW-8 Rajesh Payasi, who is the father of the deceased and PW-9 Manoj Upadhyay. All the witnesses have deposed that the deceased had told them that all the three accused persons had sprinkled petrol on her and set her ablaze. The dying declaration of the deceased is oral dying declaration. There is no dying declaration of the deceased 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 said to be recorded by the Executive Magistrate or by the doctor.
28. PW-4 Smt. Prabha Devi in her evidence deposed that she reached at a petrol pump at Amanganj where she met with the in-laws of the deceased and they were taking the deceased to the hospital in a jeep. She further deposed that on the way the deceased told her that three accused persons namely Mahendra Tiwari (husband), Pavan Tiwari (devar) and Saroj Tiwari (mother-in-law) had sprinkled petrol on her and set her ablaze and locked the kitchen from inside and ran away. In para 11 of her cross-examination, she admitted the fact that in her statement Ex.D1, recorded by the police, it is not mentioned that all the three accused persons had set the deceased ablaze and it is mentioned that the husband of the deceased Mahendra Tiwari had set the deceased ablaze. We have perused the statement Ex.D1 of PW-4 Smt. Prabha Devi recorded under Section 161 of the Cr.P.C. by the police. In the aforesaid statement, she stated that the accused Mahendra Tiwari had locked the deceased in the kitchen and sprinkled petrol on her and set her ablaze. PW-5 Ashish Payasi, who is the brother of the deceased, deposed that at Amanganj he had asked from the deceased that what had happened, then she told him that all the three accused persons had beaten her and sprinkled petrol on her and set her ablaze. Same facts have 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 been deposed by PW-7 Anil Pathak. He deposed that deceased had told him at Amanganj Hospital when she was on a stretcher that three accused persons had set her ablaze. PW-9 Manoj Upadhayay also deposed the same fact, however, he had said that he had seen the deceased when she was laying outside of the Amanganj Hospital and at that time deceased told him that three accused persons/appellants had sprinkled petrol on her and set her ablaze.
29. The question is that whether these statements of the witnesses are reliable in regard to oral dying declaration of the deceased or not. This is an important piece of evidence and it has to be examined carefully.
30. The Apex Court in the matter of Ramsai and others vs State of M.P., AIR 1994 SC 464 has held as under in regard to oral dying declaration:
"........The oral dying declaration is no doubt an important piece of evidence. But it should be free from all infirmities........"
31. The Apex Court in the matter of Heikrujam Chaoba Singh vs State of Manipur, (1999) 8 SCC 458 has held as under in regard to oral dying declaration:
"An oral dying declaration no doubt can form the basis of conviction, though the courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability."
32. The principle of law which emerges from the above quoted judgments of the Apex Court in regard to oral dying declaration is that the witness who deposes about such oral dying declaration to him must pass the scrutiny of reliability.
33. PW-4 Smt. Prabha Devi, who is the mother of the deceased did not mention the names of other two accused persons namely Pavan Tiwari and Saroj Tiwari in her statement recorded under Section 161 of the Cr.P.C. to the effect that they had also set the deceased ablaze. Apart from this, she deposed that she was in the jeep and, thereafter, when the deceased died the vehicle returned back, however, she had not taken any care to take care of dead body of the deceased. The dead body was given on supurdaginama to the husband of the deceased. PW-4 did not lodge any FIR at the police station. The mother-in-law of the deceased i.e. accused Saroj Tiwari informed the police about the death of the deceased. On that basis, the merg was registered. The FIR was registered on 13.12.2014, however, the merg Ex.P20 was registered on 10.12.2014. There is no explanation that why the mother of the deceased did not lodge the FIR. The brother of the deceased PW-5 Ashish 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 Payasi and other two witnesses i.e. PW-7 Anil Pathak and PW-9 Manoj Upadhyay are the residents of the same village. PW-9 Manoj Upadhyay told them about the act of the accused persons/appellants when they met with her at Amanganj Hospital. However, this statement does not find corroboration with the statement of PW-2. From the evidence of PW-2 Dr. M.K. Gupta, who is an independent witness deposed that one vehicle came and he had seen there that a lady was laying in the vehicle who had received burn injuries. The lady was not taken into the hospital. The nurse administered an injection to the deceased and thereafter, the vehicle had left the hospital. He specifically denied that brother of the deceased Ashish came to him. The statement of the doctor is quite natural. The condition of the deceased was serious and nurse administered an injection to her and, thereafter, the vehicle had rushed to another hospital. The statements of aforesaid two witnesses in regard to dying declaration are contrary to the statements and deposition of the neighbours.
34. The witnesses also deposed that deceased had told them that the accused persons had beaten her and locked her inside the kitchen. However, the doctor who conducted postmortem and the Investigating Officer, in their evidence deposed that they did not notice any injury except burn 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 injuries on the person of the body of the deceased. The neighbours, who are also prosecution witnesses, did not depose that they found the kitchen locked from inside.
35. PW-14 Vasudev Prasad Tiwari, who is the neighbour of the deceased, deposed that he had seen smoke coming out from the house and, thereafter, he went to the house of the deceased and opened the door and at that time, the deceased came out from the house and, thereafter, he tried to save the deceased and then other persons came. He specifically denied the fact that the room was locked from inside and it was opened. Same facts have been deposed by PW-15 Shyam Sundar Tiwari, who also deposed that he had seen that the deceased was laying in the house and she was taken to the hospital by her in-laws in a vehicle. Same facts have been deposed by PW-16 Vishnu Kumar Pidha, PW-17 Ram Sushil Shukla, and PW-18 Shyam Bihari Tiwari. These witnesses are the independent prosecution witnesses. Even though, after death of the deceased, PW-8 Rajesh Payasi did not depose that the kitchen was locked from inside. He was declared hostile in regard to seizure memo. The witness of seizure Ex.P2 and Ex.P1 did not support the case. They have been declared hostile. As per the FSL report, Ex.P18, no smell of petrol was found in the plastic cane which was seized by the police and in which it is said that the petrol was 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 stored, however, smell of petrol was found on the under garments of the deceased which is Ex.B, but, it is mentioned that smell was 'कक्षीण'. The doctor, who conducted the postmortem, specifically deposed that he did not notice any smell of petrol from the body of the deceased or her cloths that's why he did not mention the said facts in Ex.P3.
36. In this view of the matter, in our opinion, the dying declaration which is said to be given by the deceased to PW- 4, PW-5, PW-7 and PW-9 in regard to two accused persons Pavan Tiwari and Saroj Tiwari is not reliable. The conduct of the aforesaid two accused persons has also to be taken into consideration.
37. The investigation officer admitted the fact that Pavan Tiwari, who is the younger brother of the husband of the deceased and Smt. Saroj Tiwari who is the mother-in-law of the deceased were living separately from the deceased. This fact has also been corroborated by the evidence of independent witnesses, who are the neighbours. The conduct of the accused persons is that mother-in-law Smt. Saroj Tiwari and other family members of the husband of the deceased had taken the deceased to the hospital in a jeep. Last rites were also preformed by them.
38. Except the oral dying declaration, there is no other 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 evidence to connect the accused persons with the incident. Hence, in our opinion, the conviction recorded by the trial Judge of Pavan Tiwari and Smt. Saroj Tiwari is contrary to law and the prosecution has failed to establish the guilt beyond reasonable doubt against appellants Pavan Tiwari and Smt. Saroj Tiwari. There is no circumstantial evidence against these two accused persons/appellants, hence, benefit of doubt is given to them.
39. In regard to the conduct of the husband of the deceased Mahendra Tiwari, his conduct is quite suspicious. He was not accompanying the persons who had taken the deceased to the hospital, even though his mother, who had taken the deceased to the hospital after she received burn injuries. There is no evidence why the appellant Mahendra Tiwari, who is the husband of the deceased, did not reach on the spot immediately and did not accompany the deceased alongwith his mother to the hospital. Not only that, in the accused statement recorded under Section 313 of Cr.P.C., the defence adopted by this appellant is that he had lent Rs.50,000/- to his in-laws and in order to grab said amount, as also the land in his name they have falsely implicated to him, and has tried to make the most of accidental death of his wife. It is pertinent to mention here that no such suggestion has been made by the appellant to any of the witnesses, hence, the 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 defence so adopted by the appellant cannot be accepted. The amount of Rs.50,000/- as suggested by the appellant was actually given towards the maintenance of his minor son who was living with his in laws. The mother of the deceased PW- 4 Prabha Devi deposed that deceased told her that her husband Mahendra Tiwari sprinkled petrol on her and set her ablaze. She also stated the same fact in her statement recorded under Section 161 of the Cr.P.C. Up to that extent, the testimony of PW-4 is reliable. If the testimony of single witness is reliable, inspires confidence of the court, the conviction of the accused can be based on the aforesaid testimony. Hence, in our opinion, the prosecution has proved the guilt of the appellant Mahendra Tiwari beyond reasonable doubt. There is also evidence that appellant Mahendra Tiwari, who is the husband of the deceased, treated the deceased with cruelty. The son and the daughter of the deceased were living separately from their father and mother. Son was living with the mother of the deceased and the daughter was living with the mother-in-law of the deceased. It established the fact that the appellant Mahendra Tiwari was not treating the deceased properly. In our opinion, there is evidence to establish the fact that the appellant Mahendra Tiwari had sprinkled petrol on the deceased and set her ablaze. In the forensic report, smell of 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 petrol was found on the under garments of the deceased, seized by PW-2 who performed the postmortem. Hence, the conviction of the appellant Mahendra Tiwari for commission of offences punishable under Section 302 of the Indian Penal Code is hereby upheld.
40. Now, the next question is that whether punishment of death sentence is proper or not.
41. The Apex Court in the matter of Sunder Singh vs State of Uttaranchal, (2010) 10 SCC 611 has held as under
in regard to award of death sentence and rarest of the rare case:
"51. The law is now well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], where it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) where the murder has been committed after previous planning and involves extreme brutality; or
(b) where the murder involves exceptional depravity.
52. The mitigating circumstances which were mentioned in that judgment were:-
(a) That the offence was committed under the influence of extreme mental or 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
53. The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], where this Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
54. The matter was further considered in Devender Pal Singh Vs. State of NCT of Delhi [AIR 2002 SC 1661], wherein, after examining both the aforementioned cases, it 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 was held that when a murder is committed in an extremely brutal manner, or for a motive which suggests total depravity and meanness or where the murder is by hired assassin for money or reward, or a cold blooded murder for gains, the death sentence is justified. Similar such observation was made even in the decision in Atbir Vs. Govt. of NCT of Delhi [JT 2010 (8) SC 372].
55. Relying on all these cases, this Court, in Criminal Appeal Nos. 127-130 of 2008 (C. Muniappan & Ors. Vs. State of Tamil Nadu) decided on 30.8.2010, confirmed the death sentence. That was a case where the accused persons, while demonstrating against the arrest of their leader, started damaging public transport vehicles. Some girl students of a University were travelling in a bus. The three accused persons attacked the bus and sprinkled petrol in the bus full of girl and boy students and set it on fire with the students still inside the bus. As a result, the inmates started escaping; however, three of the girls could not escape and were roasted alive. The unprovoked attack on the bus and the burning of the bus by sprinkling petrol on the bus, and the death of three students as a result of such burning was viewed by this Court as a barbaric and inhuman act of the highest degree. The offence was viewed as brutal, diabolical, grotesque and cruel, shocking the collective conscience of society. It was on that account that the death sentence was confirmed. Several comments have also been made by this Court on the inaction shown by the general public and the police who remained passive and did not try to help the unfortunate victims.
56. In Ravji Alias Ram Chandra Vs. State of Rajasthan [1996 (2) SCC 175], relying on the decision in Dhananjoy Chatterjee Vs. State of West Bengal [1994 (2) SCC 220], this Court confirmed the death sentence, where the murder by the accused of his wife in the advanced stage of pregnancy and of his three minor children was viewed as rarest of the rare cases. The Court observed that the accused has 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 not even spared his mother, who very rightly tried to prevent him, and the accused assaulted her with the same axe with which he killed his wife and minor children. The accused was described as blood-thirsty demon. In Dhananjoy Chatterjee Vs. State of West Bengal (cited supra), the murder was of a helpless girl who was raped and then murdered. That was viewed as the rarest of the rare cases.
57. In State of U.P. Vs. Dharmendra Singh & Anr. [1999 (8) SCC 325], it was held that the High Court was not right in avoiding the death sentence on the ground that the convict was languishing in death cell for more than 3 years. In that case, the accused had committed murder of 5 persons including an old man of 75 years, a woman aged 32 years, two boys aged 12 years and a girl aged 15 years when they were asleep only to wreak vengeance on the part of the accused. The High Court considered the act on the part of the accused in denuding the lower part of the body of the girl. This Court observed that the High Court had misdirected itself in refusing to confirm the death sentence on account of the so-called 3 years of languishing in death cell.
For this proposition, the Court relied on the decision in Triveniben Vs. State of Gujarat [1988 (4) SCC 574], where it was held that the delay in executing the sentence was of no consequence.
58. In Atbir Vs. Govt. of NCT of Delhi (cited supra), which was a case dependant upon a dying declaration, the allegation was that the accused had stabbed all the three persons of a family so that he and his brother could enjoy the entire property and money. The repeated stabbing of the deceased was viewed as the act for which the accused could be legitimately awarded death sentence. The incident therein had occurred on 22.1.1996 while the Sessions Judge had awarded the death sentence on 27.9.2004. The High Court had confirmed the death sentence on 13.1.2006 while this Court affirmed this sentence by its judgment dated 9.8.2010. This Court, after 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 taking the stock of the aggravating circumstances and mitigating circumstances, as pointed out in Bachan Singh Vs. State of Punjab (cited supra) and Machhi Singh & Ors. Vs. State of Punjab (cited supra), came to the conclusion that though Atbir was a young person of 25 years of age and had already spent 10 years in jail, that was not a mitigating circumstance in his favour. The three murders were held to be extremely brutal and diabolical, committed with deliberate design in order to inherit the entire property of Jaswant Singh without waiting for his death.
59. In Sushil Murmu Vs. State of Jharkhand [AIR 2004 SC 394], which was a case of human sacrifice of a 9 years old child, this Court found the accused guilty on the basis of circumstantial evidence. While culling out the aggravating circumstances, this Court named five circumstances on the basis of the earlier case law in Machhi Singh & Ors. Vs. State of Punjab (cited supra), Bachan Singh Vs. State of Punjab (cited supra) and Ediga Anamma Vs. State of A.P. [AIR 1974 SC 799]. Two of the said circumstances are as follows:
1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
2. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality, are committed.
In this case, the Court recorded that the murder was a dastardly murder by sacrificing a hapless and helpless child of another for personal gain and to promote his fortunes by pretending to appease the deity or was a brutal act which is amplified by the grotesque and revolting manner in which it was committed. This case was even relied upon by the High Court while confirming the death sentence.
34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016
60. In another decision in Gurdev Singh & Anr. Vs. State of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR 2003 SC 4187], this Court specifically held in Para 19 that there could be no fixed or rigid formula or standard for invoking extreme penalty of death sentence. This was a case where this Court took notice of the decision in Rajendra Prasad Vs. State of Uttar Pradesh [1979 (3) SCC 646], where this Court had held that the focus had shifted from crime to criminal and the special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal. The Court, however, noted that this was overruled in Bachan Singh Vs. State of Punjab (cited supra) later on.
61. The Court also referred to various cases like
(i) A. Devendran Vs. State of Tamil Nadu [1997 (11) SCC 720], which was a case of triple murder, where the Court had refused to pass the death sentence,
(ii) Kumudi Lal Vs. State of U.P. [1999 (4) SCC 108], which was a case of rape and murder of a young girl aged 14 years and where this Court had refused to confirm the death sentence on the ground that the death of the girl must not had been intended by the accused, and
(iii) Om Prakash Vs. State of Haryana [1999 (3) SCC 19], which was a case where a BSF Jawan had murdered as many as 7 persons. This was also a case where the Court refused to confirm the death sentence on the ground that the bitterness in the mind of the accused had increased to a boiling point and the agony suffered by the accused and his family members at the hands of the other party, and for not getting protection from the police officers concerned and the total inaction on their part inspite of repeated written prayers, had goaded or compelled the accused to take law in his own hands.
62. Two other cases where the death sentence was not confirmed were also referred 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 to in Gurdev Singh & Anr. Vs. State of Punjab with Piara Singh & Anr. Vs. State of Punjab (cited supra). They were Mohd. Chaman Vs. State (NCT of Delhi) [2001 (2) SCC 28] and Lehna Vs. State of Haryana [2002 (3) SCC 76]. However, this Court then took notice of the facts and noted that the accused in that case had fired at the marriage party as he knew that there was going to be a marriage on the next day in the house of the complainant. The accused had fired at the time when the feast was going on and 13 persons were killed on the spot and 8 persons were seriously injured. Out of all those 13 persons, one was 7 years' child. This Court, under the circumstances, refused to convert the death sentence into the sentence for life.
63. There are three other cases which we must mention. In Haru Ghosh Vs. State of West Bengal [2009 (15) SCC 551], where one of us was a party (V.S. Sirpurkar, J.), there was a murder of a helpless lady and a child by a person who was already suffering death sentence. However, that act was not found to be a pre-meditated act. It was found that the accused had acted on account of the previous enmity and since he thought that his livelihood was being attacked by the husband of the deceased, though in an incorrect manner. It was found that he had not come armed to the scene of offence. It was also found that though he was not justified in eking out his livelihood by selling liquor, but the fact of the matter was that he and his family was surviving only on that, and the effort on the part of the husband of the deceased to stop the activity of the accused was sufficient to nurture deep hatred in his mind on account of which the accused acted. Such is not the case here.
64. In Dilip Premnarayan Tiwari & Anr. Vs. State of Maharashtra etc. [2010 (1) SCC 775], again where one of us (V.S. Sirpurkar, J.) was a party, this Court refused to confirm the death sentence, where the accused was guilty of committing multiple murders (4 in number). However, considering the fact that the 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 sister of the accused was married to the deceased out of a love affair, which marriage was not approved at all by the family of the accused being an inter-caste marriage and further they being neighbours and the accused having to suffer the ignominy because of the so- called marriage on day to day basis, this Court took the view that this was not a case where the death sentence was to be awarded. The Court considered the psychology of the accused, the taunts that he had suffered on account of his sister's marriage with a person of different community and further the fact that the situation had gone out of his hand as his sister was on the family way. The Court, therefore, viewed that this could not be the rarest of the rare cases.
65. Lastly, in Swamy Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka [AIR 2008 SC 3040], though there was one of the most cold- blooded murder for gains, the Court recorded that considering the absolute irrevocability of the death penalty, sentencing accused to death would not be proper. We do not find anything in this decision, which will be helpful to the accused in the present matter." It is not necessary to quote other judgments on this point because the Apex Court has considered number of judgments in this case. A Constitution Bench of this Court in Bachan Singh vs State of Punjab, AIR 1980 SC 898 has specifically held that death penalty can be inflicted only on the gravest of the grave cases. In the present case, the allegation against the appellant-husband Mahendra Tiwari is that he had sprinkled petrol on the deceased who was his wife and set her ablaze. In our opinion, the act of the accused/appellant Mahendra Tiwari could not be termed as 34CRRFC-3-2016, CRA-2342-2016 & CRA2346-2016 the gravest of the grave cases. Hence, the trial Court has committed an error of law in awarding death sentence to the accused-appellant Mahendra Tiwari. In our opinion, the proper sentence which may be awarded to the accused- appellant Mahendra Tiwari is sentence of life.
42. Consequently, the reference is answered in negative and it is held that the trial Court has committed an error in awarding death sentence to the appellant Mahendra Tiwari.
43. Criminal Appeal No.2342 of 2016 filed by the appellants Pavan Tiwari and Smt. Saroj Tiwari is hereby allowed. They are acquitted from the offence. If they are not required in any other case, they be released immediately.
44. Criminal Appeal No.2346 of 2016 filed by appellant Mahendra Tiwari is partly allowed. His conviction for commission of offence punishable under Section 302 of the Indian Penal Code is hereby upheld, however, his sentence is modified and he is sentenced to life imprisonment. Impugned judgment of the trial Court in regard to Mahendra Tiwari is modified accordingly.
(S.K. GANGELE) (SUBODH ABHYANKAR)
JUDGE JUDGE
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