BIMLA DEVIversusRAJESH SINGH &ANR.

                    [2015] 10 S.C.R. 1087


                         BIMLADEVI                              A
                              v.
                   RAJESH SINGH &ANR.
             (Criminal Appeal No. 1033 of2010)
                                                                B
                     December 16, 2015
  [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]

       Penal Code, 1860- ss. 302134, 201, 148, 452, 323 -
  Double murder - Previous enmity between the parties - c
  Statement of informant that assailants shot dead her father-
  in-/aw and her husband, dumped father-in-law's body into the
  well and snatched the jewellery of the ladies - Conviction of
  accused persons under various provisions of the Code and
  sentenced to rigorous imprisonment for life - In appeal, the D
  High Court gave benefit of doubt to accused RS and acquitted ·
  him of all the charges, however, upheld conviction and
  sentence of four accused holding that the case was proved
  beyond reasonable doubt - On appeal, held: There is no
  infirmity in the order of High Court regarding accused RS - E
  Regarding the other accused, procedural lapse in not sending
. the FIR promptly, would not effect the prosecution case- No
  motive in manipulating with the FIR proved - Mere
  overwriting in the name of the informant would not affect the
  proceedings since the fact of homicidal death as also the F
  manner in which the death occurred not disputed and the
  contents of the inquest report supported by the eye witnesses
  and also th.e medical evidences - Further, testimonies of
  each of the six witnesses proved and corroborated by the
                                                                 G
  other and remain unshaken during cross-examination -
  Their presence was natural and each explained the
  occurrence -As regards enhancement of sentence, accused
  neither have any criminal antecedents nor posing any
  danger to society at large - Instant case not within the H
                               1087
1088         SUPREME COURT REPORTS                [2015] 10 S.C.R.


 A     category of rarest of the rare cases and thus, no need of
       scaling each and every aggravating and mitigating
       circumstances - Sentence awarded by the courts below
       adequate - Thus, order passed by the High Court does not
       call for interference - Sentence/sentencing.
 B
           CRIMINALAPPEt LATE JURISDICTION: Criminal Appeal
       No. 1033 of2010
           From the Judgment and Order dated 20.12.2007 of the
       High Court of Judicature at Patna in Criminal Appeal Nos. 371
 C     of2002
                            WITH
           C~iminal Appeal Nos. 1034-1036, 1037 of 2010
           Criminal Appeal No. 543-545 of 2013
 o        R. Basanth, Amit Pawan, Gopal Singh, Anuj Prakash,
     . Sandeepan Pathak (A.C.) for the Appellant.

            Nagendra Rai, Gopal Singh, Anuj Prakash, Smarhar Singh, ·
       S. K. Saurav and T. Mahipal for the Respondents.
 E         The Judgment of the Court was delivered by

        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 the High
 F 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, La loo Tiwary,
 G 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 arid sentence
 H by the two Courts below and Criminal Appeal Nos.1034-1036
          SIMLA DEVI v. RAJESH SINGH &ANR.                        1089
             [PINAKI CHANDRA GHOSE, J.]

of 2010 are filed by the informant Simla Devi W/o late Lalan      A
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.
                                                                  B
     2. The brief facts necessary to dispose of these appeals
are that on 20.12.1998 at 4:30 PM, the informant Simla 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 C
husband Lallan Tiwary were shot dead at their house by the
assailants, namely, Uma ShankarTiwary, 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 D ·
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.                                                          E

     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 F ·
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 G
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 serit to the Juvenile Justice Court. The charges were read H
1090         SUPREME COURT REPORTS               [2015] 10 S.C.R.


 A     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
 B 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
 C Section 302/34 IPC, further rigorous imprisonment forfour 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
   liwary, Laloo liwary and Pramod liwary were further sentenced
 D 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
 E which permanent Warrant of Arrest in red ink has been issued.
   The High Court all~wed 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
   liwary, Pramod liwary and Lala liwary was upheld by the High
 F 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
 G 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
 H independent witnesses did not identify Rajesh Singh in the ·
           BIMLADEVI v. RAJESl:i SINGH &ANR.                          1091
              [PINAKI CHANDRA GHOSE, J.]

Court, even when they identified the other four accused. The A
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.                   B

     7. The Trial Court finding enough evidence against
accused Rajesh Singh, convicted him for the double murder.
However, the High Court pointed outthat accused Rajesh Singh
was nowhere named in the FIR or the Police statement and              C
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       "D
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           E
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               F
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                     G
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          H
1092         SUPREME COURT REPORTS                    [2015] 10 S.C.R.


 A     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.

 B          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;
 C     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 Kum_ar, but subsequently it
       was erased and in its place, name of Simla Devi wife of Lallan
       Tiwary was written.
 D
        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
 E 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 tne statement (fardbeyan) at 4:30
 F 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
 G sent to the Magistrate through Special Messenger on
   22.12.1998.Although itis 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
 H lacunae. It is an accepted fact that there was a delay of one
           BIMLA DE: .'I ·:. QAJt.SH SINGH &ANR.                      1093
              [PINAKI CHANDRA GHOSE, J.]

day in sending the FIR. However, no motive in manipulating A
with the FIR was proved. The prosecution case is strongly
ba~ked by testimonies of the six eye witnesses who have
t€1stified the incident in almost similar terms. A procedural lapse
in not sending the FIR promptly, did not prejudice the present
case.                                                               B

      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         C
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              D
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        E
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         F
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 G
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 H
1094         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


 A     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
 B     so as to exclude any possibility of tutoring or manipulation.

        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
 C 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
 D 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
 E   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.
 F   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
 G   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
 H   enhancement of sentence was not challenged before the High
             BIMLADEVI v. RAJESH SINGH &ANR.                          1095
                [PINAKI CHANDRA GHOSE, J.]

Court is a cogent reason not to entertain such a plea at this A
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       B
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         C
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              D
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              E
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             F
Court. These eight appeals are, accordingly, dismissed.

Nidhi Jain                                       Appeals dismissed.