Jharkhand High Court
The State Of Jharkhand vs Pawan Kumar Singh Aged About 26 Years on 19 September, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Death Reference No.4 of 2023
With
Criminal Appeal (D.B.) No. 588 of 2023
[Arising out of judgment of conviction dated 13.03.2023 and order of
sentence dated 16.03.2023 passed by learned District & Additional Sessions
Judge-I, Ramgarh in Sessions Trial No. 13 of 2020]
Death Reference No.4 of 2023
The State of Jharkhand .... .... .... Appellant
--Versus--
Pawan Kumar Singh aged about 26 years, son of Binod Singh, R.P.F. Police,
Posted R.P.F. Post, Barkakana, P.S. Railway Barkakana, P.O. Barkakana,
District Ramgarh, Jharkhand and resident of Village Krath (Karath), P.S.
Tarari, P.O. Karath, District Bhojpur, Aara, Bihar
.... .... .... Respondent
With
Criminal Appeal (D.B.) No. 588 of 2023
Pawan Kumar Singh aged about 26 years, son of Binod Singh, R.P.F. Police,
Posted R.P.F. Post, Barkakana, P.S. Railway Barkakana, P.O. Barkakana,
District Ramgarh, Jharkhand and resident of Village Krath (Karath), P.S.
Tarari, P.O. Karath, District Bhojpur, Aara, Bihar
.... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant : Mr. B.M. Tripathi, Sr. Advocate
Mr. Naveen Kumar Jaiswal, Advocate
For the State : Mr. Satish Prasad, A.P.P.
For the Informant : Mr. Prabhat Kumar Sinha, Advocate
-----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
JUDGMENT
Reserved on: 11.09.2024 Pronounced On: 19.09.2024
Per Gautam Kumar Choudhary, J. Death Reference on behalf of the State and
the Criminal Appeal preferred on behalf of the appellant arise out of the
judgment and sentence passed in Sessions Trial No.13 of 2020, whereby and
whereunder the appellant has been convicted and sentenced to death under
Sections 302 and 307 of the IPC and Section 27 of the Arms Act.
2. Learned Senior Counsel Mr. B.M. Tripathy appearing on behalf of the
appellant has confined his argument on the point of sentence and has not
assailed the judgment of conviction.
3. It is argued by the learned Counsel on behalf of the appellant that
learned trial court has failed to observe the guidelines laid down by Hon'ble
Supreme Court for awarding death sentence. There has been a penalogical
shift in sentencing criteria, particularly in exercising judicial discretion while
making a choice between sentence of death and imprisonment for life.
Mandate of law which has been codified since 1973 Cr.P.C. is that special
reasons are to be assigned in case of sentence of death. In State of M.P. Versus
Udham & Others, 2019 SCC OnLine SC 1378, it has been held that
sentencing for crime is to be analyzed on the touch stone of: Crime Test,
Criminal Test and Comparative Proportionality Test. It is not only the gravity
and nature of crime that is to be considered while sentencing, but also the
'criminal' to be taken into account to see whether there was any prospect of
reform or not. These aspects have not been considered and discussed by the
learned trial Court.
4. In the present case, it is urged that appellant was aged 26 years with a
good service record. The incidence took place on spur of moment when he
was peeved by the demand for due amount for milk supplied to him. There
was no past enmity, no premeditation in committing the offence and it was
result of sudden spurt of passion. Learned trial Court has not accepted that the
offence had a caste angle and therefore, he has been acquitted of the charges
under the provision of SC/ST Act. No complaint has been received against
the conduct of the appellant during the period of his incarceration. Learned
trial Court has failed to draw the aggravating and mitigating circumstances as
per the ratio laid down by the Hon'ble Supreme Court, to justify awarding
capital punishment.
5. Learned counsel on behalf of State has defended the death sentence. It
is submitted that the appellant has acted in a most cruel manner, when he
opened fire on the unarmed family with his service pistol, resulting in death
of three including two ladies and injured two who received gunshot injury.
Suman Devi had received a bullet injury which is still lodged in her back. It
is also argued that age of accused cannot be a factor to dilute the severity of
offence committed.
6. Before entering into the issue of death sentence, on the face of it,
finding and sentence under Section 27 of the Arms Act is an error apparent
on record. Section 27 of the Arms Act does not apply in all cases of firing, but
is limited to only such cases where it is in violation of Section 5 and 7 of the
Arms Act, 1959. Thus, where it is a firing by one having no license, or by a
prohibited arms, then it will invite conviction under Section 27 of the Arms
Act. In the present case, firing was resorted to by a service pistol by the
accused to whom it was issued, therefore, it is not a case of either firing by an
unlicensed or prohibited arm and, so conviction under Section 27 of the Arms
Act is not sustainable.
7. In order to appreciate the rival submissions advanced on behalf of both
sides, and resolve the 'sentencing dilemma', it will be desirable to briefly refer
to the admitted prosecution case which has not been assailed during the course
of argument. Appellant was serving as a constable in Railway Protection
Force. He was a neighbor of the informant family and used to take milk from
them. When informant saw the appellant entering into his house, at 8 p.m. on
17.08.2019, he was in the adjacent room, and thought that he had come to
take milk. He suddenly heard shots being fired and rushed to the room where
he saw the appellant- Pawan Kumar Singh was indiscriminately firing with
his pistol on his family members. In the barrage of firing, informant, his
mother, father and two sisters sustained gunshot injuries. Informant and his
sister- Suman Devi survived, while his father, mother and one sister died of
bullet injuries.
8. Suman Kumari (P.W. 3) has deposed that during her surgery 102 stiches
were given. She sustained four bullet injuries, two in each of her hand and
third over her abdomen and fourth was still lodged in her back. Informant has
deposed that her elder sister who died in the firing, was pregnant and the child
in the womb was snuffed out before breathing and seeing the world.
9. Appellant went on the killing spree when due for milk supplied was
asked for.
10. Death sentence has been consciously retained as a penal option by the
legislature, and its constitutionality has been upheld by Hon'ble the Supreme
Court. It can be awarded only in rarest of rare case, for special reasons to be
recorded and as per the guidelines laid down by the Apex Court. Broad
guidelines have been laid down in Bachan Singh Versus State of Punjab,
(1980) 2 SCC 684, Machhi Singh & Others Versus State of Punjab, (1983)
3 SCC 470 and subsequent authorities. The ratio of the authorities on this
seminal issue 'death or life' has been summed up in Madan Vs. State of U.P.,
2023 SCC On Line SC 1473 as under,
76. This Court, in the case of Machhi Singh (supra), after referring to
the Constitution Bench judgment in the case of Bachan Singh (supra),
observed thus:
"38. In this background the guidelines indicated in Bachan Singh
case [(1980) 2 SCC 684: 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980
Cri LJ 636] will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentence arises.
The following propositions emerge from Bachan Singh case [[(1980) 2
SCC 684: 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636]:
"(i) The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
'offender' also require to be taken into consideration along with the
circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In
other words death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and provided,
and only provided, the option to impose sentence of imprisonment for life
cannot be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to
be drawn up and in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is
exercised.
39. In order to apply these guidelines inter alia the following questions
may be asked and answered:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage
to the mitigating circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances in the
light of the aforesaid proposition and taking into account the answers to
the questions posed hereinabove, the circumstances of the case are such
that death sentence is warranted, the court would proceed to do so."
11. In the present case, the aggravating and mitigating circumstance can be
summed up as under:
Aggravating circumstance:
a. Appellant attempted to eliminate the entire family, causing death
of three and critically injured two of them.
b. Among the deceased were two women, out of whom one was
pregnant at the time of the incidence. One of the victim woman
sustained four bullet injuries and underwent prolonged treatment
and multiple surgeries. One of the bullet is still lodged in her
back.
c. The victims were unarmed persons, whereas the appellant was a
Constable in RPF who resorted to indiscriminate firing by
service pistol.
d. There was no past enmity and appellant flew into a rage when he
was asked to pay for the milk supplied to him.
Mitigating circumstance:
I. Incidence was unpremeditated, without any past enmity.
II. There is no criminal antecedent and the incidence appears to have taken
place on the spur of moment.
12. Considering the above factors like absence of past enmity, absence of
preplanning in execution, and offence being the outcome of momentary
emotional disturbance, we are of the view that this is a case where the
alternative to death sentence is not foreclosed, so as to make it the only
available option of sentencing.
13. In the result,
a. Death sentence is accordingly commuted to rigorous
imprisonment for a period not less than 25 years without
remission, and a fine of Rs. 10,000/- for offence under Section
302 of the IPC. In the event of default of payment of fine, SI for
one month. He is also sentenced to undergo RI of 10 years and a
fine of Rs.10,000/- under Section 307 of the IPC. In the event of
default of payment of fine, SI of one month. Substantive
sentences to run concurrently.
b. Death Reference No.4 of 2023 is answered in the negative and
death sentence is not confirmed.
c. Conviction under Section 27 of the Arms Act, is set aside.
d. With modification in finding and sentence, Criminal appeal
(D.B.) No. 588 of 2023 stands dismissed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Per Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 19th September, 2024
AFR/Anit
