2015-16

Subject: Criminal Law II

Final Draft

Dilip Premnarayan Tiwari & Anr. v. State of Maharashtra: Case Comment

Submitted to: Submitted by:

Dr. K. A. Pandey Shubham Patel

Associate Prof. (Law) Roll No. 137

Section B

B.A. LL.B. IVth Sem.

 Acknowledgements

Nothing in this whole world can be accomplished alone and my piece of work is
not an exception too, in successful completion of this work there has been help
and support of various peoples.

First of all I will like to pass a note of thanks to my teacher of Dr. K.A. Pandey for
giving me an opportunity to work on such an interesting topic and for solving
the problems whichever I had related to the topic.

I would also like to thank the Library Staff of Dr. Madhu Limaye Library for
helping and cooperating in the best possible manner, at any stance.

Help and support of the family and friends cant be thanked in words thank you
all for being so supportive and helpful.
 Contents
Introduction 1
Name of the Case 2
Citation 2
Strength of the Bench 2
Statement of Facts 2
Law on Point 3
Issues Involved 4
Judgment 4
Case Comment 6
Conclusion 8
Bibliography 9
Introduction

The use of punishment is multi facet, it is sometimes retributive, sometimes used as a deterrent
and sometimes for reformation, the retributive form is now not in use in permanent state of
affairs and is only used in cases where the convicted person is beyond reformation, else
reformation and deterrent are basic functions attributed to the punishment, the scope of
punishment now a days has shifted to a place where the convict is sought to be reformed so as he
can again become a member of society.

Death if not Life, Life if not Death, Death or Life is the present state in which the judiciary is
stuck with. The penal system of India, especially in case of punishment for murder has evolved
from a long period of time and now has changed from what earlier it was, earliest if the
chronological order is considered the death penalty in cases of murder was requirement and
special reasons were needed to be mentioned to grant the accused the punishment of life
imprisonment, later the position was changed and he reciprocal was initiated i.e. the life
imprisonment became requirement and special reasons were needed to give death penalty, what
is stark is that the judiciary, though there are settled principles has evolved a new type of
imprisonments which have a prescribed minimum sentences attached to the sentence of life
imprisonment.

There were certain guidelines laid down in various cases which determine the whether the
particular case falls under the category of the rarest of rare or not depending upon the facts of the
cases. The present case was a murder of four people by convict and 3 other one of them being
unidentified till last, the convict, being brother-in-law of victim killed victim Prabhu, his father
Krishnan, cousin Bijit and another Abhayraj, Deepa and Indira were injured in the act.

The trial court and High court convicted them of the offence and ordered them death sentences
but the same was reduced by the Supreme Court to the life imprisonment with a minimum of 25
years of imprisonment for two and 20 years for one, without any remission to be granted, the
remission is talked under Sec 432 of CrPC. The court also considered in this case honour killing
due to caste a mitigating circumstance to reduce sentence earlier awarded.

The matter intrinsic to the case and judgment are dealt in detail in the following pages.
Name of the case: Dilip Premnarayan Tiwari v. State of Maharashtra

Citation: (2010) 1 SCC 775.

Strength of the Bench:

The case was decided by a division bench, comprising of two judges, the honorable judges being
V.S. Sirpurkar J. and Deepak Verma J.

Statement of facts:

The present case came before the court as an appeal against the judgment of Sessions Court and
High Court which convicted and gave Death Penalty to the accuseds for the offense under sec.
302, 307, 452 of the Indian Penal Code (IPC).

The appeal was filed by the appellants Dilip Premanarayan Tiwari, Manoj Paswam and Sunil
Ramashray Yadav, the other accused Premnarayan Tiwari and Tulsa Devi were acquitted by the
trial court. The appellants were tried for murdering Prabhu Nochil, Krishnan Nochil, Bijit,
Abhayraj @ Bachhu and injuring Deepa and Indira, the deceased Prabhu was brother in law of
Dilip Tiwari who was the main architect of the crime, the two co accused were friends of Dilip
namely Manoj and Sunil and there was an unidentified person .

The facts of the case are as follows, accused 1 Dilip was from a Brahmin family, he had a sister
named Shushma who fell in love with Prabhu who belonged to Kerala and belonged to Ezhava
caste, the family of the girl did not approved this affair and tried to stop the same, but, the affair
went on for 5 to 6 years and the girl went on to get married with Prabhu on 29-10-2003 before
the Registrar of Marriages, Bandra, Mumbai and started living with her husband. After the
marriage mother of the accused, Tulsa Devi and his sister went to persuade Shushma to
comeback home and get remarried. When Shushma got pregnant she was shifted to a relatives
home. Shushma was threatened that if she married both of them would be killed.

On the day of the commission of act, the accused went to the house of the victims at night and
when father of Prabhu, Krishna opened the door he was attacked by the accused Dilip and Manoj
and stabbed at chest, when Prabhu came to rescue his father he was taken out of house stabbed
too, and according to prosecution Dilip asked Sunil and other unidentified person to take him out
and kill, Dilip and Manoj when moved forward to kill Deepa who came to save her brother they
were hackled by Bijit who was stabbed and killed, then they stabbed Deepa and Prabhus mother
and finally they stabbed Abhayraj @ Bachhu who was their neighbor and came after listening
hue and cry, he was chased and assaulted by Sunil.

Deepa gathered courage and called her relative Balan on phone and informed him who in turn
informed other. As the effect of the incident Bijit, Krishnan and Abhayraj were killed and other
three were grievously injured and taken for medical assistance and Prabhu died on the way,
where he allegedly made dying statement to Balan that he was killed by Dilip and Manoj, the
other victims Deepa and Indira recovered their injuries after medical attention.

FIR was lodged with number CR No,1-114/04 at around 5:30 am and had only names of Dilip
and Manoj.

The appellant was found guilty by the trial court and the appellate court under Sections 302,307
and 452 of the IPC and was sentenced to death by the High Court and Trial Court, the appeal of
which came to the Honble Supreme Court.

Law on Point

Indian Penal Code, 1860 - Section 34

When a criminal act is done by several persons in furtherance of the common intention of all,
ach of such persons is liable for that act in the same manner as if it were done by him alone.

Indian Penal Code, 1860 - Section 302: Punishment for Murder

Whoever commits murder shall be punished with death, or imprisonment for life, and shall also
be liable to fine.

Indian Penal Code, 1860 - Section 307

Whoever does any act with such intention or knowledge, and under such circumstances that, if
he by that act caused death, he would be guilty of murder, shall be punished with imprisonment
of either description for a term which may extend to ten years and shall also be liable to fine; and
if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for
life, or to such punishment as is hereinbefore mentioned.

Attempt by life convicts: When any person offending under this section is under sentence of
imprisonment for life, he may, if hurt is caused, be punished with death.

Indian Penal Code, 1860 - Section 452

Whoever commits house trespass, having made preparation for causing hurt to any person or for
assaulting any person, or for wrongfully restraining any person, or for putting any person in fear
of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine.

Issues Involved

The Court looked into the question whether the conviction by the Sessions and High Court was
correct or not, the Supreme Court in the present case also dealt with the quantum of punishment
which was to be awarded to the accused after the conviction, as it was considered that extremes
of conventional sentences were not sufficient.

Judgment

Honorable Supreme Court, in the present case disposed the appeals of the accused by maintain
their conviction under Sec 302, 307, 452 of IPC but reduced the quantum of punishment which
was given death penalty, given by the High Court and turned it to life imprisonment with a rider
attached of minimum of 25 years for accused Dilip and Manoj and 20 years to Sunil, which was
to be without remission.

The SC looked and probed into various issues and also took certain mitigating circumstances into
consideration in determining the guilt as well as deciding the punishment.

The held that the lower courts were correct in determining the guilt of the accused and rightly
found them guilty of murder, but it further noted that the lower courts failed to appreciate the
mitigating circumstances that were present in the case and thus the punishment arrived by them
is not appropriate as per the crimes committed, and tried to delve into the issue of the state of
mind of the accused when they jointly perpetrated the act and what lead them to do it.
The court said that all murders are foul but there is no straight jacket formula using which one
can determine and tell the result and punishment which is appropriate for the offender and every
aspect of the case should be looked into, it said that there is no doubt that Dilip was the chief
architect of the crime and the rest were his friends who felt compelled to help him due to some
reasons or others, as per Sunil, it said that since he was living in house of Dilip, he would have
felt morally compelled to help him.

The court looked into the factor that the accused Dilips sister went on to marry the other caste
Keralite Prabhu, and even after her family tried to convince her to step out of marriage but when
all the attempts and she became pregnant all hopes of her coming back were lost, and
considering the situation of the society we live in, the family must have been ridiculed because
of the act of the daughter, as the society still does not accepts the marriage which are inter caste.
The court found that the mental state of the accused would have got affected due to this constant
probing and ridiculing of the society and this lead them to take such a step, and considered it to
be a mitigating factor.

The court further said that the murder was not done in a diabolic manner and the bodies were not
deformed, they also referred Om Prakash vs. State of Haryana1and found that mere number of
person killed is not a justification for death sentence.

The court thus found them guilty, but relying on this mitigating circumstance and other cases and
also considering their ages and conduct otherwise found that there is a chance of reformation and
based on this sentenced Dilip and Manoj, who were most active perpetrator for life imprisonment
with minimum of 25 years without remission, and Sunil for life imprisonment too but with
minimum of 20 years without remission.

1
(1999) 3 SCC 19.
Case Comment

Life and liberty are the most cherished rights of the Human Beings, be it a convict or a law
abiding citizen, when a person is convicted and a person is awarded a sentence his life in cases of
Death Penalty being given, which is reserved for rarest of rare cases is take, and when he is
awarded Life Imprisonment liberty is taken to a certain extent, but still this mechanism of
punishment is needed to keep the anti social elements at bay and to instill the sense of security in
the general masses, but along with this objective the other objective is the reformation of the
convicts as we have moved from the retributive form of punishment and the same is reserved for
the cases in which convict is beyond the scope of reformation.

The case of Bachan Singh v. State of Punjab2 for the first time laid down the test for rarest of
rare crimes, which was rather enlarged in case of Machhi Singh v. State of Punjab,3

Death if not life, life or death, Life if not Death, is the present state in which the judicial system
seems stuck with, with a slight swaying away from awarding death sentences. What this case
saw though was not unprecedented, but was rare, as there are only a few rare cases of the similar
variety, the Honble Supreme Court did not confirmed the death sentence rather ordered a
sentence life imprisonment sentence with a minimum of 25 years of imprisonment without
remissions for two accused and 20 years of imprisonment for the third one.

Right of judiciary vis--vis the executive function

The duty of judiciary is limited in checking and ensuring that the accused is not wrongly
fabricated and depending upon the fact matrix of the case and evidence forwarded to decide his
guilt or innocence and when the accused is acquitted or convicted and awarded a sentence, in
case of conviction the job of the judiciary is done, it is duty of the executive to implement the
sentence. The executive is granted the power under Sec. 432 of CrPC to remit the sentence in
case if it feels that the same is justified, it can grant the remission, the remission granted does not
changes the nature of the conviction but merely changes the sentence, so there is nowhere the
alteration is done in the work done by the judiciary and the judges should refrain from violating
separation of power.

2
(1980) 2 SCC 684.
3
(1983) 3 SCC 470.
Every convicted person has a legal right to make an appeal to the respective government to ask
for remission, though getting remission is not their legal right, but the courts while ordering that
there shall be no remission, violates the legal right of the person.

Reformation vis--vis Retribution

The objective of the punishment in the modern world is to reform and deter people from doing so
and the retributive punishments (death penalty) are adopted when the person being punished is
deemed to be incapable of being reformed.4

The court while giving the punishments in this case considered the fact that all the accused did
not had any instances of previous criminal records as well as they were of young age and came to
a conclusion that they are still capable of being reformed, and after coming to this conclusion
awarded 25 years to Dilip and Manoj and 20 year imprisonment to Sunil.

Court while presuming that the accused will get reformed in the imprisonment missed out to
explain the very important question that why the specific periods of this many years were needed
and how would these number of years specifically reform the convicts. One can easily raise the
question that how is such time determined and why not a lesser time of 15 and 20 years or a
bigger sentence time of 30 and 25 years was not needed.

Caste and Honor Killing: Mitigating Circumstance or Rarest of Rare

The SC in this case said that the caste is a prevalent though sad reality of our society which
cannot be denied and further went on to attribute that the accused might have been subjected to
the same caste based ridicule that drove him to commit murders of such numbers of people, and
hence this is a mitigating circumstance while sentencing.

Though when the other case of the SC is considered the court in that case recognized Honor
Killings as an evil prevalent in the society and dubbed it into the category of the rarest of rare. 5

4
The Indian Penal Code (Vol. I), Ram Jethmalani, D.S. Chopra, Thomson Reuters.
5
Bhagwan Das vs. State (NCT of Delhi), AIR 2011 SC 1863.
Conclusion

The above judgment was one example where, one can say a new kind of punishment was
implemented once again, but sadly this implementation was not backed by the proper reasons as
to why this kind is better than what earlier existed and why it should be used and how it satisfies
the present case. The present case in my opinion was a case which deserved the accused to be
given death penalty as though it was observed that they did not had any previous criminal
antecedents but the crimes committed by them were of grave nature, the three accused together
went and killed people at the night when the victims were sleeping, though they went in after
knocking the door but the victims were certainly unprepared and this also shows a preplanning
on the part of accused. They left the place only when they were convinced that all the people
were dead, though Deepa and Indira were alive, but in the minds of they must have considered
them dead too.

The judgment never provided the reason for the specific necessity of such term of prison term
needed for the reformation and how this much time was needed, the Honble court also let go of
what was a sheer case of revenge murders in name of caste, whereas the same court late decided
that the such cases fall under rarest of rare.

The Honble court held such sentences valid in case of Union of India vs. Shriharan6.

I criticize the judgment rendered in this case, as in my opinion the accused deserved death
penalty, moreover when there is change prescribed in law it should be backed by reasons which
were missing in the case above.

6
2015 SCCOnline SC 1267.
Bibliography

Primary Sources

The Indian Penal Code, Ram Jethmalani & D.S. Chopra, Thomson Reuters
Textbook on Criminal Law, K.D. Gaur, 5th ed. Universal Law Publishers
www.scconline.com
www.manupatra.com

Other Sources

https://lawinrem.wordpress.com/2011/09/03/discrepancies-in-lifers/
http://lawandotherthings.blogspot.in/2009/09/reflections-on-scs-judgment-in-haru.html