Allowed

Digamber Singh and Others v. State of U.P.

Allahabad HC13 Dec 2022CRLA/98/1989

Case brief

AI extract

What is this about?

In an appeal against conviction for grievous hurt and murder, the High Court upheld convictions for simple and grievous hurt under IPC, accepting that the fatal assault charge failed against appellants. Deferring immediate harsh punishment due to the stale nature of the case and the appellants' long peaceful coexistence with victims, the Court released them on probation while ordering compensation

What did the court decide?

Appellants acquitted of murder; convicted of hurt. Released on probation for one year with bond; ordered to deposit Rs. 5,000 each as compensation.

Digamber Singh and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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AFR

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Court No. - 93

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Case :- CRIMINAL APPEAL No. - 98 of 1989 Appellant :- Digamber Singh And Others Respondent :- State of U.P. Counsel for Appellant :- S.D.N. Singh Counsel for Respondent :-

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Hon'ble Surendra Singh-I,J.

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Heard Sri Shailendra Kumar Tripathi holding brief of Sri Abhinav Dwivedi, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned AGA appearing for the State.

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2. This criminal appeal has been filed against the judgment and order dated 21.12.1988 passed by Special Judge (Essential Commodities Act), Farrukhabad in S.T. No. 113 of 1984 (State vs. Digamber Singh and three others) arising out of Case Crime No.7 of 1983 under Sections 302 IPC P.S. Thathiya, District Farrukhabad. As per status report filed by learned AGA, no government criminal appeal has been filed against the aforesaid acquittal order.

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3. By the impugned order, the trial court has convicted accused appellants Digamber Singh, Bachchu Singh and Dhanpal Singh under Section 323 IPC read with Section 34 IPC and under Section 325 IPC read with Section 34 IPC and sentenced each accused under Section 323 IPC one year’s rigorous imprisonment with a fine of Rs. 1,000/- and under Section 325 IPC three years’ rigorous imprisonment with a fine of Rs. 2,000/- with default stipulation. The trial court has acquitted all accused of all the charges levelled against them under Section 302 IPC read with Section 34 IPC.

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4. During pendency of the criminal appeal, the appellant no. 3 Bachchu Singh died and criminal proceedings against him were abated. Thus, the criminal appeal filed by the appellants Digamber Singh and Dhanpal Singh is to be decided by this Court.

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5. The prosecution case in brief is that the appellants accused Digamber Singh and Bachchu Singh are real brothers and accused Dhanpal Singh is the son of Bachchu Singh. The informant Lakhan Singh son of Kunwar Singh is the resident of village Mannapurwa, Pargana Narsai, Police Station Thathiya, District Farrukhabad. The informant Lakhan Singh and appellants accused are relatives. Mukut Singh, uncle of the informant Lakhan Singh, had gone to demand Rs. 150/- from accused Dhanpal Singh which he had borrowed from Mukut Singh about 5 to 6 years earlier. Even after repeated demands, Dhanpal Singh did not repay the loan amount. On 11.01.1983, at 5.00 pm in village Mannapurwa, Pargana Narsai, Police Station Thathiya, District Farrukhabad, Mukut Singh went and asked Dhanpal Singh to pay the loan amount. Dhanpal Singh refused to pay the loan amount and abused him. Mukut Singh forbid him from abusing, accused Bachchu Singh and Dhanpal Singh started beating Mukut Singh. On alarm being raised by Mukut Singh, informant Lakhan Singh, his father Kunwar Singh reached at the place of occurrence, thereafter accused Digamber Singh, Bachchu Singh and Dhanpal Singh brought lathi from their house and started beating Lakhan Singh and his father Kunwar Singh. They also assaulted Mukut Singh. Kunwar Singh received injury on the head and fell on the ground who died later on. Pws Indrapal Singh and Kishanpal reached at the place of occurrence and they saw the incident and on their chasing, all the accused ran away from the spot. In the incident, Kunwar Singh died and informant Lakhan Singh and his uncle Mukut Singh received injuries caused by lathi. Informant Lakhan Singh prepared written report (Ex.Ka.9) on the basis of which FIR was lodged on 11.01.1983 at 9.30 pm as Crime No. 7 of 1983 under Section 302 IPC against accused Digamber Singh, Gorakhnath Singh, Bachchu Singh and Dhanpal Singh. Chik FIR

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thereof is Ex.Ka.6. The registration of criminal case was entered in GD which is Ex.Ka.9.

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6. Injured Mukut Singh was medically examined on 12.01.1983 at 9.00 am in government dispensary Thathiya, by Dr. D.P.Bajpai (Ex.Ka 4). Two contusions and complaint of pain on right knee joint were found. Injured Lakhan Singh was medically examined on 12.01.1983 at 9.30 am in government dispensary Thathiya (Ex.Ka 5). Eight injuries including lacerated wound and abrasions were found in different parts of his body.

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7. The panchnama proceedings (Ex.Ka.14) of deceased Kunwar Singh was done by Sub-Inspector B.S.Tomar. The investigation of the case was done by Sub-Inspector K.K.Sharma and D.S.Dixit who collected blood stained and simple soil from the place of occurrence and prepared recovery memo (Ex.Ka.12). They also took in possession blood stained towel whose recovery memo is Ex.Ka.11. The Investigating Officer visited the place of occurrence and prepared site plan (Ex.Ka.13) and recorded statement of witnesses and after investigation submitted chargesheet (Ex.Ka.20) under Section 302 IPC against Digamber Singh, Gorakhnath Singh, Bachchu Singh and Dhanpal Singh.

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8. The post mortem of the dead body of Kunwar Singh was done on 13.01.1983 at 2.30 p.m. by Medical Officer, Dr. Sarvesh Chandra Gupta at District Hospital Fatehgarh and prepared post mortem report which is Ex.Ka.2. Nine ante mortem injuries on different parts of the body of deceased were found. According to opinion of Medical Officer, Dr. Sarvesh Chandra Gupta, Kunwar Singh died due to injuries caused by lathi.

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9. On 05.07.1985, the court framed charge under Section 302 read with Section 34 IPC against accused Digamber Singh, Gorakhnath Singh, Bachchu Singh and Dhanpal Singh. They denied the charge and claimed trial.

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10. To prove the charge, the prosecution examined PW 1 Lakhan Singh, PW 2 Mukut Singh and PW 3 Indra Pal Singh as witnesses of fact. The prosecution also examined PW 4 Dr. Sarvesh Chandra Gupta, PW 5 Dr. D.P.Bajpayee, PW 6 Kamal Kishor, PW 7 Head Constable Jagannath Prasad and PW 8 SubInspector B.S.Tomar and PW 9 Sub-Inspector Devi Shankar as formal witnesses. The formal witnesses proved the injury report, post mortem report and other prosecution papers.

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11. On 08.01.1988, the court recorded statement of accused under Section 313 CrPC who denied the prosecution case. They stated that witnesses are giving false statement due to enmity.

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12. The accused examined DW 1 Sudhar Singh, DW 2 Vipul Sangram Singh. In their defence, CW 1 Mahendra Singh, Constable, was examined as court witness.

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13. PW 1 Lakhan Singh has deposed in his evidence that Kunwar Singh is his father. The appellants accused Digamber Singh and Dhanpal Singh are real brothers. The appellant accused Dhanpal Singh is the son of Bachchu Singh. The accused are sons of his grand father’s real brothers. PW 1 Lakhan Singh has deposed in his evidence dated 01.01.1986 that about three years ago, at 5.00 pm his uncle Mukut Singh had gone to the house of Dhanpal Singh to get back Rs. 150/- which he had given him as loan about 3 to 4 years earlier. Dhanpal Singh refused to repay the amount and abused his uncle, Mukut Singh. When his uncle forbade him to abuse, Dhanpal Singh, Bachchu Singh and Digamber Singh beat him with fists. On alarm being raised by Mukut Singh, his father Kunwar Singh came there to save him. The appellants accused Digamber Singh, Bachchu Singh and Dhanpal Singh assaulted him and his father Kunwar Singh with lathi. His father received injury on his head and fell on the spot. On alarm being raised by PW 1 Lakhan Singh and PW 2 Mukut

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Singh, witnesses Indrapal Singh and Kishanpal Singh reached on the spot. On their arrival, accused fled away from the place of occurrence. PW 1 Lakhan Singh has deposed in his evidence that he and his uncle Mukut Singh were medically examined in Government Hospital Thathiya. PW 1 Lakhan Singh has also proved his written report (Ex.Ka.1).

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14. Thus PW 1 Lakhan Singh by his evidence has proved the date, time and place of occurrence. He has also proved involvement of accused Digamber Singh, Bachchu Singh and Dhanpal Singh and injuries received by them. He has also proved the manner in which accused caused injury to him and his uncle Mukut Singh. PW 1 Lakhan Singh has also proved that the accused assaulted his father Kunwar Singh on his head resulting in fracture of his skull causing his death.

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15. PW 2 injured Mukut Singh and PW 3 Indrapal Singh have also proved by their evidence date, time and place of occurrence in which accused caused injury to him and PW 1 Lakhan Singh. PW 2 injured Mukut Singh and PW 3 Indrapal Singh have also proved that the accused assaulted Kunwar Singh, father of Lakhan Singh, on his head resulting in fracture of his skull bone causing his death.

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16. PW 1 Lakhan Singh and PW 2 Mukut Singh are injured witnesses. Their presence on the place of occurrence cannot be doubted. From the evidence of PW 3 Indrapal Singh, his presence on the spot can also be believed. Thus, PW 3 Indrapal Singh is also eye-witness and he has seen the occurrence. The evidence of PW 1 Lakhan Singh, PW 2 Mukut Singh and PW 3 Indrapal Singh appears to be cogent truthful and reliable. Nothing comes in their cross-examination which makes it false or unreliable. The oral evidence of PW 1 Lakhan Singh, PW 2 Mukut Singh and PW 3 Indrapal Singh has been corroborated by the documentary

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evidence i.e. written report, chik FIR, recovery memo of blood stained and simple earth collected from the place of occurrence, injury report of Lakhan Singh and Mukut Singh, post mortem report of Kunwar Singh, site plan of the place of occurrence and charge-sheet filed against the appellants accused.

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17. From the appreciation of aforesaid oral and documentary evidence, it is proved that accused Digamber Singh, Bachchu Singh and Dhanpal Singh in pursuance of common intention caused simple and grievous injury to Lakhan Singh, Mukut Singh and Kunwar Singh. Thus, the charge under Section 323/34 and 325/34 IPC is proved beyond reasonable doubt against accused Digamber Singh and Dhanpal Singh. The trial court has rightly convicted the appellants accused Digamber Singh and Dhanpal Singh under Section 323/34 and 325/34 IPC.

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18. Heard learned counsel for the appellants accused and learned AGA on the question of sentence.

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19. Learned counsel for the appellants accused has submitted that the incident took place about 40 years ago on 11.01.1983. Injured Lakhan Singh, Mukut Singh and deceased Kunwar Singh and accused Dhanpal Singh are relatives. They are the resident of same village and they are living peaceful for the last 40 years. Learned AGA for the State has not submitted any criminal history of the appellants accused Digamber Singh, and Dhanpal Singh. It is also submitted that the date of birth of appellant accused Digamber Singh is 20.05.1955 and presently he is about 66 years old. It has also been submitted that the appellants accused may be treated leniently and they should be given benefit of Probation of Offenders Act, 1958 and released on probation.

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20. Per contra, learned AGA for the State has submitted that the appellants accused be awarded exemplary punishment so that it becomes deterrent for future offenders.

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21. Indian legislature has not given any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in India.

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22. Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts.

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" ... It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused 'X' vs. State of Maharastra (2019) 7 SCC 1 )

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"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).

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Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." ( State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300 )”

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23. It is also notable that "... where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 of State of Madhya Pradhesh vs. Vikram Das (2019) 4 SCC 125 )

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24. Section 357 Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc.

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25. Supreme Court has reiterated need for proper exercise of power of granting compensation under Section 357 Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that:

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"11....Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation."

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"31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay."

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"54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat

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the very object behind the introduction of the provision."

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26. Considering the facts and circumstances of the present case as well as keeping in view the position of law as mentioned above and considering that the incident had taken place about 39 years back; the incident was occurred in spur of the moment; and considering the provisions of Section 4 & 5 of the Probation of Offenders Act, 1958 it appears justified that the appellants accused Digamber Singh and Dhanpal Singh be released under Section 4 (1) of the Act on probation for a period of one year on furnishing a personal bond of Rs.20,000/- (Rupees twenty thousand) and two sureties each in the like amount. During this period, they shall maintain good conduct and keep peace and on breach of this condition, they shall appear before the Court to receive punishment. It also appears justified that under Section 5 (1) (a) of the Act, each appellant is directed to deposit Rs. 5000/- within a period of one month from the date of receipt of certified copy of this order as compensation which shall be paid to injured Lakhan singh and Mukut Singh equally. In case of death of these injured, their legal representatives shall be entitled to receive their shares of compensation.

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27. The criminal appeal is disposed of accordingly.

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28. Let a certified copy of this order along with record be sent to the court concerned for compliance. In case, probation bonds is not filed and compensation amount is not deposited by the appellants accused, they will have to undergo the sentence awarded by the trial court.

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Order Date :- 13.12.2022

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Pratima

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Digitally signed by :- PRATIMA AGRAHARI High Court of Judicature at Allahabad

Digamber Singh and Others v. State of U.P.

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Digamber Singh and Others v. State of U.P.

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