DILIP PREMNARAYAN TIWARI AND ANR. versus STATE OF MAHARASHTRA

22. Shri Raj, learned counsel tried to submit that she had not identified the accused persons individually in the Court. The argument is clearly incorrect. If she had claimed that she had A known all the accused persons that could have been challenged ><– in the cross-examination by asking her to identify the accused persons. The defence backtracked on that issue and did not choose to ask her to identify the accused individually. It was obvious that if she very well knew Dilip and Manoj, which claim B cannot be disputed, the remaining third accused would be Sunil and she would be in a position to identify him individually and probably that is why the defence did not take the chance. The other two accused were also related to Dilip, being father and i. mother of Dilip. Therefore, it was obvious that the witness had c meant only accused No. 2 as Sunil. The evidence of the witness about the role played by Dilip and Manoj, to begin with, and thereafter by Sunil in assaulting Abhayraj has gone almost unchallenged.

There is practically nothing in the cross- examination and the whole cross-examination was only on 0 fringes. She also went to the extent of telling the colours of the clothes which were worn by Bijit and her father as also described the clothes worn by Prabhu. That claim has also not 1- been disputed nor demolished in cross-examination. Very strangely, the cross-examination was directed at the omissions of the claims which the witness had not made in her E examination-in-chief and on the basis of the answers given in cross-examination which was not permissible. The whole evidence of the witness is extremely natural and the witness has not tried to unnecessarily implicate anybody else. She has not assigned any role to the unknown person. She has also not ,,.. F exaggerated by stating that Sunil also assaulted herself, Indira or Bijit. It is only as regards Abhayraj that she has attributed the assault to Sunil against him.

Her whole evidence being the evidence of injured eye-witness was wholly credible as has been held by the Trial Court as well as the High Court. Even G her evidence, insofar as the assault on herself and her father and Bijit is concerned, is supported by the medical evidence which evidence we will consider in the latter part of the ~­ judgment. We, therefore, cannot accept the contention raised by Shri Agrawal that Manoj was not identified merely because DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 347 OF MAHARASHTRA [V.S. SIRPURKAR, J:] his name did not appear specifically in the FIR. We also reject A —4 the contention of Shri Raj to the effect that Sunil was not identified at all by this witness. This takes us to the evidence of Indira, another witness injured during the assault.

23. Indira also asserted in her evidence that she knew the B accused persons including Sunil (accused No.2) and accused Manoj (accused No.3). She was woken up owing to the shrieks of Deepa and Krishnan. She saw that Deepa and her husband were in the injured condition when she entered the TV room. It is significant that at that time, accused Dilip and accused c Manoj rushed towards her and inflicted blows with knife over her neck, chest, face and hands. She has also seen accused Sunil (accused No.2) entering the room at that time which version completely tallies with the version of Deepa. She also attributed the neck injury of Abhayraj to accused Sunil. It is significant that she has not referred to deceased Prabhu who had been dragged outside. She then asserted that accused -l Sunil chased Abhayraj who ran outside the house from the back door. She asserted that Prabhu disclosed to her that Dilip (accuse9 No.1), Manoj (accused No.3) and Sunil (accused No.2) and one more person had assaulted him with knife.

She E has also extensively been cross-examined. In her cross- examination, she had rightly asserted that when she entered the room, Prabhu was not present in the room and Deepa had also fallen down. She was asked about Deepa Kakad who resided adjacent to their house. There is an important omission about Prabhu's having stated to her that it was accused Dilip, Manoj and Sunil who had assaulted him. In spite of that omission, it cannot be forgotten that Indira is an injured eye- witness herself and had seen assault on deceased Abhayraj by Sunil (accused No.2). She has also seen Dilip and Manoj. G Her claim in the examination-in-chief that she knew accused Dilip (accused No.1), Manoj (accused No.3) and Sun ii (accused No.2) and further claim that Sunil and Manoj were friends of Dilip has not been demolished at all in the cross- examination. In fact there does not appear to be any challenge A to that claim.

It must be noted that both Deepa (PW-4) and Indira (PW-8) have not spoken about any dying declaration having been made by Prabhu to PW-2, Shashidharan while they were being taken to the Hospital, probably because both Deepa and this witness, Indira were unconscious while Deepa B regained her consciousness only in the Hospital. This witness was very seriously injured and regained her consciousness after quite some time. The only cross-examination on behalf of accused No.2 was that there were a few persons with the name Sunil in their locality. She also had not stated that Sunil was a c friend of Dilip. In our opinion, these omissions do not help the defence as there was no reason for these witnesses to falsely implicate Sunil. There is really no strained relationship of this witness with Sunil at least shown in their cross-examination. Under these circumstances, the witnesses would gain nothing D by falsely implicating Sunil and Manoj.

There is absolutely no cross-examination in respect of the identity. Therefore, the evidence of these two witnesses was rightly believed by the ._ Trial Court as also by the High Court. In our opinion, this clear cut eye-witness account by Deepa and Indira is enough to convict Di lip (accused No.1 ), Manoj (accused No.3) and accused Sunil (accused No.2).

24. During the arguments before us Shri Raj gave a notice under Section 294 (2), Cr.P.C. to the State counsel to admit the document which is so-called dying declaration of Prabhu dated 17.05.2004. This dying declaration was a part of the )o– charge-sheet and the copy thereof was supplied to the accused persons. Very strangely, this dying declaration was not brought forth on record by the prosecution. The said dying declaration now having been admitted by the Public Prosecutor can be read G in evidence. It is counter signed by Dr. S.S. Anakal (PW-5). It is also counter signed by the Investigating Officer Kailash BhaNe. It bears a thumb mark. This was made by deceased Prabhu wherein it has been stated that at about 1.30 a.m. ,._ Prabhu's father was assaulted by 2-3 persons with knife and H when he came out, he was also assaulted. At that time accused DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 349 OF MAHARASHTRA [V.S.

SIRPURKAR, J.] Dilip and accused Manoj inflicted knife blows on him and at that A –"' time two more persons entered the house and started assaulting them. Further it is stated that while Dilip and Manoj were trying to assault his mother, he tried to stop them. He has also suggested that since he had married Dilip's sister Sushma, Dilip, Manoj and their other associates had entered their house B and assaulted them. In fact when the matter was pending before the High Court for confirmation, the accused filed an application under Section 391 of the Code of Criminal Procedure to take – ,_ on record this dying declaration. We have seen that application. In that application production of additional evidence under c Section 391, Cr.P.C. was suggested on the ground that though such a dying declaration was given to Dr. S.S. Anakal by deceased Prabhu, the same was notifrought on record by the prosecution and the same was suppressed from the defence before the Trial Court. It was stated to be a vital omission on D the part of the prosecution and it was further claimed that it went to the root of the matter as far as the culpability of accused Sunil is concerned. It was also pointed out that in the said dying declaration, the name of Sunil Yadav was not mentioned and that due tp inadvertence, the said dying declaration was not E confronted during the evidence of PW-5, Dr.S.S.Anakal. The application was rejected by the High Court. Very strangely, this application was opposed by the Public Prosecutor as also the learned counsel appearing for Dilip (accused No.1) and Manoj (accused No.3). The High Court observed in its order dated 01.09.2007 that though Dr. Anakal was examined as witness and though the copy of this dying declaration was furnished to all the accused persons during the trial, no question was put with regard to Prabhu's dying declaration by the counsel for· accused No.2, Sunil before the Trial Court. It was on these grounds that the High Court observed that in view of the strong G opposition by Dilip (accused No.1) and Manoj (accused No.3) to the application, the High Court was not inclined to exercise -4 its discretion in favour of the appellant and on that ground the · application stood rejected.

25. To say the least, we are surprised by the order passed by the High Court. In fact the proceedings before the High Court – were in the nature of an extended trial. The confirmational proceedings are always the original proceedings. The High Court was dealing with the accused who was facing death B sentence. Therefore, merely because no question was asked to Dr. S.S. Anakal (PW-5), the document could not have been held back and an opportunity was bound to be given by getting the document proved if necessary by re-calling Dr. Anakal by the High Court itself. The task of the Public Prosecutor is not c only to secure the conviction, he has a duty to the Court. He is an officer of the Court and, therefore, in all fairness, firstly the document should have been brought on record and secondly, even if Dr. Anakal who recorded the dying declaration was not confronted with that dying declaration, that opportunity could not D have been denied before the High Court since the proceedings before the High Court were in the nature ot original proceedings and an extended trial. We are surprised that the Public j.. Prosecutor opposed the application. Fairness of the trial is the basic requirement in the criminal law. We think that the Public E Prosecutor ought not to have opposed the production of the document. We, therefore, allowed the production of the document.

26. In a reported judgment Rampa/ Pithwa Rahidas & Others. v. State of Maharashtra [1994 Supp (2) SCC 73) F somewhat similar situation occurred where this Court reiterated r the duty of the investigating agency to act honestly and fairly. In that case a communication-cum-application by an approver, before he was made approver wherein he had claimed the bail on the ground that he knew nothing aboutthe offence and he G was unnecessarily being incarcerated, was not confronted to him at the time of trial. The Court took the view that though the witness was not confronted with that statement and in a strict sense it was not brought before the Court, yet the same ,_ communication could be looked into by the Courts. The Court DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 351 OF. MAHARASHTRA [V.S. SIRPURKAR, J.] —1 also observed in paragraph 37 as under: "The quality of a nation's civilization," it is said, "can be largely measured by the methods it uses in the enforcement of criminal law" and going by the manner in which the investigating agency acted in this case causes B concern to us. In every civilized society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false c evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Let no guilty man go unpunished but let the end not justify the means! The Courts must remain ever ….\ alive to this truism. Proper results must be obtained by recourse to proper means – otherwise it would be an invitation to anarchy."

27. Shri Raj urged that we should send back the matter E for further examination of Dr. S.S. Anakal and, if necessary, the other witnesses like the Investigating Officer who has also counter singed the said dying declaration. Shri Gaurav Agrawal also urged that in case the dying declaration is sent back then further opportunity will have to be given even to accused Nos. 1 and 3 to further cross-examine the witnesses as the dying declaration clearly goes against at least accused Nos. 1 and 3.

28. Ordinarily, we would have sent back the matter. However, we cannot ignore the fact that all the three accused persons are facing death sentence awarded by the Trial Court -f and confirmed by the High Court. We would not, therefore, increase the agonies of the accuseJ persons by sending back the matter to the High Court; in stead, since accused No.1 and 3 did not have opportunity to cross-examine the witnesses H A about the document, we will not consider the documents against accused Nos. 1 and 3. Insofar as accused No.2, Sunil is concerned, it is true that his name does not appear in the said dying declaration but in our considered opinion that would be of no consequence for the simple reason that the evidence B of the eye-witness completely fixes the criminal liability on the part of accused No.2, Sunil. Therefore, even if the said dying declaration is somewhat helpful to Sunil, that by itself will not wipe out the evidence of the two eye-witnesses whose evidence was credible as held by the Trial Court as well as the ..\ – c Appellate Court.

29. Thus in our view, the conviction of all the three appellants before us as ordered by the Sessions Judge and confirmed by the High court is correct and we confirm the same.

30. This, however, takes us to the question of sentence. This is a case where the death sentence has been ordered by ;… the Sessions Judge which ilas been confirmed by the High Court. We must, at this juncture, take the overall circumstances while taking into consideration the death sentence awarded by E the Courts below. As held in Machhi Singh v. State of Punjab [1983 (3) SCC 470] as also in Bachchan Singh v. State of Punjab [1980 (2) SCC 684), we must weigh the circumstances justifying the grant of death sentence vis-a-vis the mitigating circumstances. The High Court considered the following F circumstances justifying the imposition of death penalty" "(a) Helpless victims (b) Unarmed victims (c) Victims woken from sleep at midnight (d) Manner of inflicting injuries, 20-30 serious injuries on death of the deceased, whereas even a single injury would have been sufficient to kill, shows the barbarous attitude; DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 353 OF MAHARASHTRA [V.S. SIRP'URKAR, J.] ~'ol (e) Attacking ruthlessly six persons, Deepa and Indira were A let off presumed to be dead, seeking to wipe off the entire family; IP (f) Attack on every vital organ; (g) Young boy Bijit was brutally assaulted; (h) Not only Prabhu, even the messenger boy Abhayraj was brutally assaulted; (i) The time chosen was past midnite hence clearly c premeditated; 0) Assault on lower caste based on caste hatred: l (k) Marriage took place on 29.10.2003 and the assault was on 17.05.2004 i.e. after a lapse of seven months. As Dilip D -l was totally opposed to the marriage, the above attack was highly premeditated and not at the heat of moment.

31. The High Court relied on the judgment of Dhananjoy Chatterjee @ Dhana v. State of West Bengal (2004 (9) SCC E 751] and quoted extensively therefrom. One other case Ronny alias Ronald James Alwaris & Ors. v. State of Maharashtra [1998 (3) sec 625] was also relied on by the High Court. The High Court extensively quoted from the judgment in Ediga Anamma v. State of Andhra Pradesh [1974 (4 )SCC 443] and F State of U. P. v. Dharmendra Singh & Anr. (1999 (8) SCC 325] as also Lehna v. State of Haryana [2002 (3) sec 76].

32. However, even a close scrutiny of the judgment does not show any effort on the part of the High Court to consider the mitigating circumstances, though such exercise has been G done by the Trial Court in paragraph 42 of its judgment. The mitigating circumstances considered by the Sessions Court are: "(1) The age of the accused persons being between 20- 25 years; (2) Their clean past, in the sense they were not involved in any offence previously"

33. Shri Raj and Shri Gaurav Agrawal addressed us B extensively on the mitigating circumstances. As far as accused No.1, Dilip and accused No.3 Manoj are concerned, the learned counsel first pointed out that apart from the two circumstances considered by the Sessions Judge, namely, the young age of the accused persons and there being no criminal antecedents, c there were number of other mitigating circumstances which the Courts below had not considered. It was submitted that accused No.1, Dilip must have felt morally justified in attacking the family members due to the fact that his younger sister had revolted against the family and got married to Prabhu, a D Keralite. Therefore, to preserve the family honour, Dilip had taken the revenge of the so-called insult of his family. It was also pointed out that since Manoj was the resident of the same t. house, he also may have been persuaded to join the crime as also Sunil who was all through described as the friend of Dilip.

34. Learned counsel further argues that insofar as Manoj was concerned, he apparently had no enmity though he might have felt it necessary to display the loyalty to the family in whose house he was living and it could have been only out of that, that the murders took place. Learned counsel further argued that the F deaths of Bijit and Abhayraj were in reality not the intended deaths but they became the victims of the circumstances since Bijit tried to stop the assailants. He was not supposed to be present there but his fate drew him in the house and he became the prey of the murderous assault. Perhaps nothing would have G happened had he not come to the room. He not only came in the room but also tried the stop the assailants from assaulting.

35. As regards Abhayraj, learned counsel µointed out that he was not there in the beginning but he being the immediate H neighbour must have come attracted by the shrieks and lost his DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 355 OF MAHARASHTRA [V.S. SIRPURKAR, J.] _,. life. According to the learned counsel, there is very little or almost A no evidence available as to how Abhayraj was killed and by whom. The counsel pointed out that the only allegation was that Sunil (A-2) dealt a blow on his neck and when he ran away he was followed by Sunil and the unknown person. Learned counsel also highlighted that the possibility of the said unknown person B being responsible for the death of Abhayraj and Prabhu could not be ruled out since, as per the evidence of Deepa, Sunil and … ,., that unknown person took Prabhu out and then "it is not established as to how many blows were dealt on Prabhu and, therefore, Sunil alone could not be held to be responsible. There c may be a substantive contribution on the part of that unknown person to the crime, at least for the murder of Prabhu and Abhayraj. Learned counsel further highlighted the role of the unknown person and the fact that the said unknown person remained a mysterious part of the investigation and trial. D -i Therefore, it was ultimately urged that it could not be deemed to be an assault with a common intention to wipe out the whole family as has been tried to be suggested by the prosecution.

36. Learned counsel further submitted that it could not be said that the accused could not be reformed, particularly, E because their antecedents were clean or at least the prosecution was unable to point out any criminal activity in the past on the part of the accused persons. -…

37. Shri Raj, appearing for accused No.2, Sunil also F supported these arguments and added that, in reality, Sunil could not be attributed with the brutal attack. Undoubtedly, Sunil did not assault either Krishnan Nochil or Prabhu, to begin with, he was merely attributed assault on Prabhu after Prabhu was dragged out for which there was no evidence as to whether it G was he or other unknown person who had given blows to him. As far as the allegation regarding Abhayraj is concerned, learned counsel pointed out that like Prabhu, there was no evidence available as to how many blows had been given on Abhayraj's body and by whom. Learned counsel pointed out that H A it was only one blow which was given to Abhayraj. Learned )'r.~ counsel also urged that it must have been because of the friendship between the other accused and Sunil that Sunil had accompanied the accused persons but it could not be said that Sunil also shared the common intention to wipe out the whole B family. In fact, Sunil did not act, to begin with, insofar as the assaults on Krishnan and Prabhu were concerned. It was further pointed out that Sunil was merely 19 years of age at the time of incident. c

38. The Trial Court has made some exercise in weighing the mitigating circumstances though such conscious effort does not seem to have been made by the High Court. In terms of the law laid down in Bachan Singh's case (cited supra) as also in Machhi Singh's case (cited supra) and number of subsequent decisions of this Court thereafter, It would be now our task to weigh those circumstances.

39. All murders are foul, however, the degree of brutality, depravity and diabolic nature, differ in each case. It has been held in the earlier decisions of this Court which we may not E repeat that the circumstance under which the murders took place, differ from case to case and there cannot be a straightjacket formula for deciding upon the circumstances under which the death penalty is a must.

40. Insofar as the accused No. 1, Dilip is concerned, there F can be no doubt that he was the chief architect of the crime. There can also be no doubt that he entered the house of the victims in the dead of night. Obviously, the visit was not intended to be a courtesy call. It was obvious that he had visited being duly armed and in company of three other friends. What was G then the psychology of Dilip, accused No.1 and why did he wait for seven months are the relevant questions which must attract ,_ our attention.

41. Sushma was the younger sister of this accused. It is a DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 357 OF MAHARASHTRA [V.S. SIRPURKAR, J.] .. __.., common experience that when the younger sister commits A something unusual and in this case it was an intercaste, intercommunity marriage out of the secret love affair, then in the society it is the elder brother who justifiably or otherwise is held responsible for not stopping such affair. It is held as the family defeat. At times, he has to suffer taunts and snide remarks even from the persons who really have no business to poke their nose into the affairs of the family. Dilip, therefore, l must have been a prey of the so-called insult which his younger sister had imposed upon his family and that must have been in his mind for seven long months. It has come in the evidence c that even if the marriage was performed with Prabhu, there were efforts made by the family members of Dilip to bring Sushma back.

It has come in evidence that mother of Dilip tried to lure back Sushma and so did her other married sister Kalpana who actually went on to meet Sushma in her college. _, Those efforts paid no dividends. In stead, Sushma kept on attending the college thereby openly mixing with the society. This must have added insult to the injury felt by the family members and more particularly, accused Dilip. Why did he wait for seven months? The answer lies in the fact that Sushma became pregnant and thus reached a point of no return .. Till such time as she became pregnant, there might have been some hopes in the family to win her back but once she became pregnant, even that distant hope faded away and, in our opinion, that is the reason why this ghastly episode took place. As if all this was not sufficient, Dilip himself must have had the feeling f of being cheated. It is not that Dilip did not know Prabhu who was living only three houses away from his house.

The secret love affair which went on between Sushma and Prabhu for which Abhayraj acted as a messenger must have raised the feeling of being cheated by Prabhu. This was further G aggravated because of the so-called higher status of a Brahmin family on the part of Dilip and so-called non-Brahmin status of Prabhu. It has come on record that Sushma was moved to Andheri at the house of Shashidharan and this ought to have added as a spark which resulted in tornado. Dilip undoubtedly A was a young person not even having crossed his 25 years of )-. ~ life and not having any criminal antecedent. If he became the victim of his wrong but genuine caste considerations, it would not justify the death sentence. The murders were the outcome of social issue like a marriage with a person of so-called lower B caste. However, a time has come when we have to consider these social issues as relevant, while considering the death sentence in the circumstances as these.

The caste is a concept which grips a person before his birth and does not leave him ,. ' even after his death. The vicious grip of the caste, community, c religion, though totally unjustified, is a stark reality. The psyche of the offender in the background of a social issue like an inter- caste-community marriage, though wholly unjustified would have to be considered in the peculiar circumstances of this case.

42. No doubt, the murder was brutal. However, it has been pointed out by Shri Gaurav Agrawal as also Shri Raj that this t· was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies. The incident must have taken place barely within 10-15 minutes when they E cam.e, assaulted the family members and left. True it is that the two ladies who were assaulted were helpless and so were Krishnan and Prabhu. But when we weigh all the circumstance~. particularly, about the mindset of Dilip, the cruel acts on the part of the accused would not justify the death sentence. The F disturbed mental feeling or the constant feeling of injustice has been considered by this Court as a mitigating circumstance in '1 Om Prakash v. State of Haryana [1999 (3) SCC 19] where the accused had committed the murder of seven persons. That is also an indicator to the fact that mere number of persons lcilled G is not by itself a circumstance justifying the death sentence.

In fact in one other case reported as Ram Pal v. State of U.P. [2003 (7) sec 141] total 21 persons were killed as the accused trapped them in a house and burnt the house. Shri Karanjkar, appearing on behalf of the State very strongly H contended as against this, that in the present case while four DILIP PREMNARAYAN TIWARI AND ANR. v. STATE ……. OF MAHARASHTRA [V.S. SIRPURKAR, J.] persons were killed, two helpless ladies were also assaulted and very seriously injured and it is only because the accused thought that those two ladies had died and left, that the lives of Deepa and Indira were spared. Therefore, in the circumstances of this case, we must lean in favour of the death sentence. In a …. death sentence matter, it is not only the nature of the crime but the background of the criminal, his psychology, his social r ._ conditions and his mindset for committing the offence are also relevant.

No doubt in Ravji alias Ram Chandra v. State of Rajasthan (1996 (2) SCC 175], this Court held as under: " … The crimes had been committed with utmost c cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it sh6uld conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal" … ."

43. It is also true that this case was followed in as many as six cases where the death sentence was approved of. However, in his judgment reported as Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [JT 2009 (7) SC 248] Hon. Sinha, J. pointed out that this judgment is per G ___, incuriam as the law laid down therein is contrary to the law laid down in Bachan Singh's case (cited supra) where the principle has fallen out to the effect that the Court should not confine its consideration principally or merely to the circumstances connected with the particular crime but also give due ~ … A consideration to the circumstances of the criminal. It is because of this that we have ventured to consider the mindset of accused No.1, Dilip and the vicious caste grip that might have catapulted the crime committed by him. We would, thus, follow Bachan Singh's case (cited supra) and the principles therein B rather than following the narrow approach given in Ravji's case (cited supra).

44. Once we decide not to award the death sentence to accused No.1, Dilip, the accused No.3, Manoj also deserves c not to be given death sentence. Even he is a person without any criminal antecedents and he appears to have joined the company of Dilip only out of his commitment as he was shown to be a resident of the same house. We, therefore, do not think that even he deserves death penalty. Accused No.2, Sunil has comparatively a lesser role. Admittedly, he has not assaulted Krishnan or Prabhu, to begin with. Who has assaulted Prabhu and Abhayraj is still not clear, as it could also be that in the assaults the leading role could have been taken by the unknown accused. In that view, he also does not deserve the death sentence. The question is then how are these accused persons E to be dealt with. Ordinarily, they would be liable to be awarded the life imprisonment.

45. However, in the peculiar circumstances of this case, mere life imprisonment which is capable of resulting into 20 F years of imprisonment or 14 years of actual imprisonment may not be adequate punishment for these accused persons. Considering the overall circumstances, we feel that accused No.1, Dilip and accused No.3, Manoj who assau!ted Krishnan, Prabhu and the two helpless ladies would deserve the life G imprisonment. But we direct that they shall not be released unless they complete 25 years of actual imprisonment. In case of Sunil, however, since he had not assaulted the helpless ~ •, ladies nor had he taken part in the assault on Krishnan, he deserves the life imprisonment in the ordinary sense. He shall have to undergo the 20 years of actual punishment. Such a DILIP PREMNARAYAN TIWARI AND ANR. v. STATE 361 OF MAHARASHTRA [V.S. S1RPURKAR, J.] ._ _.. course has been held to be permissible in Haro Ghosh v. State of West Bengal [JT 2009 (11) SC 240] pronounced by this Bench, authored by V.S.Sirpurkar, J. This view was taken on the basis of the law laid down in Swami Shradhanand @ Murali Manohar Mishra v. State of Kamataka (JT 2008 (8) SC 27] where this Court after considering several cases held that such a course was permissible. We accordingly dismiss these appeals, however, modifying the sentences as shown above. The appeals are disposed off accordingly. D.G. Appeals dismissed. c