Between vs Unknown
2022 Latest Caselaw 1527 UK

                                                          Reserved Judgment

           IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL
                        SRI JUSTICE S.K. MISHRA, A.C.J.

                                       AND

                            SRI JUSTICE N.S. DHANIK, J.

CRIMINAL REFERENCE NO. 05 OF 2021

BETWEEN:

In The Matter of Capital Punishment Awarded Digar Singh .....Appellant.

And

State of Uttarakhand                                         ....Respondent.

                                      With

              CRIMINAL APPEAL NO. 08 OF 2022


BETWEEN:

Digar Singh                                                  .....Appellant.
And

State of Uttarakhand                                         ....Respondent.

Counsel for the Appellant               :      Mr. Arvind Vashisth, learned
                                               Amicus Curiae assisted by Ms.
                                               Sheetal Selwal, learned counsel.

Counsel for the Respondent              :      Mr. J.S. Virk, learned Deputy
                                               Advocate General assisted by Mr.
                                               R.K. Joshi, learned Brief Holder.

                                               Reserved On: 24.02.2022
                                               Delivered On: 19.05.2022

Upon hearing the learned Counsel, the Court made the following

JUDGMENT :(per Sri S.K. Mishra, A.C.J.)

In this Criminal Reference, under Section 366 of

the Code of Criminal Procedure, 1973 (hereinafter referred to

as "the Code" for brevity), the correctness of the judgment

and sentence of death recorded by the learned Ist Additional

District & Sessions Judge, Nainital, in Sessions Trial No.11 of

2020, as per the judgment dated 24.11.2021, is considered

along with the Criminal Appeal preferred by the condemned

prisoner, who has been sentenced to death having been

convicted under Sections 302 and 307 of the Indian Penal

Code (hereinafter referred to as "the Penal Code" for brevity).

2. As per the judgment passed by the Hon'ble

Supreme Court in the case of Anokhilal vs. State of M.P.,

(2019) 20 SCC 196, we have appointed Mr. Arvind

Vashisth, the designated Senior Counsel as an Amicus Curiae

to argue the case on behalf of the condemned prisoner-

appellant.

3. Shown of unnecessary details, the case of the

prosecution is that on 07.10.2019, one Mr. Baljeet Singh

gave information to the Station House Officer, Chorgaliya,

through former village pradhan that the condemned prisoner

Digar Singh Koranga has committed the murder of his mother

by severing her head from the rest of the body by means of

sharp cutting weapon. On receiving such information, Mr.

Sanjay Joshi, the then S.H.O. Chorgaliya, along with police

team reached the village in question, and found the deceased

Jomati Devi, mother of the condemned prisoner, lying dead

with her head severed from the body. Thereafter, father of

the condemned prisoner described the entire matter before

the S.H.O., and stated that the incident took place on

07.10.2019 at about 09:00 AM. The S.H.O., after receiving

the report from the said informant, started investigating the

case. In the course of investigation, he registered the criminal

case bearing FIR No.62 of 2019, prepared the inquest report,

examined the witnesses, sent the dead body for post-mortem

examination, seized material objects and relevant documents,

and after receipt of the post-mortem report and other

reports, he submitted the charge-sheet against the

condemned prisoner-appellant under Sections 302 and 307 of

the Penal Code. At the stage of charge, the appellant denied

to have committed the offence. Hence, the charges were

framed for the aforesaid provisions of the Penal Code.

4. In order to prove its case, the prosecution

examined twelve witnesses. P.W.1 Soban Singh Koranga is

the informant in this case. He happens to be the father of the

condemned prisoners, and husband of the deceased. P.W.2

Bina Bisht, P.W.3 Devika Devi, and P.W.4 Naina Koranga (the

daughter-in-law of the deceased) are the eye-witnesses to

the occurrence. All the other witnesses are official witnesses.

P.W.5 Dr. Sinto Devsi has conducted the post-mortem

examination on the dead-body of the deceased, P.W.6 S.I.

Bhuwan Singh Rana, P.W.7 S.I. Deepa Joshi, are two police

officers who were part of the investigation, and have also

participated in different aspects of investigation, like

preparation of panchnama etc. P.W.8 Indrajeet Singh is the

independent witness, and is also an injured. P.W.9 Dr.

Anshuman Joshi has examined the P.W.8 Indrajeet Singh.

P.W.10 S.O Sanjay Joshi, P.W.11 Subhash Singh, and P.W.12

Trilok Ram Bagreth are the Investigating Officers in this case.

In addition to the examination of witnesses, the prosecution

also relied upon 35 different documents as exhibits, and 12

material objects. Neither any witness has been examined, nor

any document has been proved on behalf of the defence.

5. Taking into consideration the statement of eye-

witnesses together with the medical evidence, and also the

confession of the condemned prisoner under Section 313 of

the Code, the learned Ist Additional District and Sessions

Judge came to the conclusion that the prosecution has

established its case under Sections 302 and 307 of the Penal

Code against the condemned prisoner.

6. On the question of sentence, the learned Ist

Additional District and Sessions Judge took into consideration

different aggravating and mitigating circumstances, and

relying upon the case of Vasanta Sampat Dupare vs. State

of Maharashtra, Review Petition (Crl.) Nos.637-638 of

2015 in Criminal Appeal Nos.2486-2487 of 2014, and in

the case of Ramnaresh & others vs. State of

Chhattisgarh, (2012) 4 SCC 257, came to the conclusion

that mother occupies a place equivalent to God who has

brought up her son, and there can be no alternate for the

rearing of a child by his/her mother. Therefore, killing of

mother will definitely have adverse effect on the society.

Hence, she considered that this is the rarest of the rare case

in which the condemned prisoner should be awarded death

penalty along with the fine. She further held that under

Section 307 of the Penal Code, the condemned prisoner

should undergo rigorous imprisonment for life, and should be

liable to pay the fine.

7. Mr. Arvind Vashisth, the learned Amicus Curiae, in

the course of argument, would submit that in view of the fact

that the condemned prisoner has admitted in his statement

recorded under Section 313 of the Code that he has

committed the murder of his mother, he does not want to

argue on the findings of facts recorded by the learned Ist

Additional District and Sessions Judge regarding the

commission of crime. However, he would further argue that

this is not a fit case for awarding death sentence to the

appellant, as the case does not come within the four corners

of the criteria in which the case can be said to be rarest of the

rare case where all other options except the death penalty

are unquestionably foreclosed. He would argue that

imprisonment for life, and also fine, should have been

awarded. Hence, he would argue that the death reference be,

accordingly, answered and the criminal appeal be disposed of.

8. Mr. J.S. Virk, the learned Deputy Advocate General

appearing for the State, would argue that sub-section (4) of

Section 313 of the Code provides that any statement made

by the accused before the Court can be used as evidence, or

material against him, and in this case, since the condemned

prisoner has admitted that he has committed the offence,

there is no reason to go into the fact of question. He, in fact,

appreciated the fact that the learned Amicus Curiae arguing

in this case, has conceded this question of fact. However, on

the question of death penalty, though Mr. J.S. Virk, made a

valiant attempt in defending the death sentence, we are of

the opinion that he could not really support the infliction of

death sentence in this case.

9. After analyzing the materials on record, we are of

the opinion that it is not necessary to go into the detailed

discussion of evidences on record. Suffice it to say that the

prosecution witnesses and evidences led have supported the

case of the prosecution, and the defence has failed to bring

out any substantial and material contradictions in their

evidences.

10. We have carefully examined the statement of the

condemned prisoner recorded under Section 313 of the Code.

Question Nos.8, 9 and 10 were put to him regarding the

statement of P.W.2 Bina Bisht. We find it appropriate to quote

the exact words used in the questions and answers given by

the condemned prisoner, which read as under:-

" - 8 अिभयोजन सा ी पी.ड ू . 2 बीना िब के सा म आया है िक सा ी आप अिभयु की पडोशी है । िदनां क 07.10.2019 को ातः

8:30 -9 :00 बजे पी.ड ू . 1 सोबन िसंह के घर म गु जर रही थी तो उसने दे खा िक आप अपने घर के आँ गन म हाथ म दराती ले कर अपनी माता जोमती दे वी को अपने हाथ म िलए दराती से गदन म वार कर रहे थे और आप अिभयु एक हाथ से अपनी माता के िसर के बाल पकड़े थे, एक हाथ से दराती से गदन म वार कर रहे थे । इस स म आपको ा कहना है ? उ र- मने अपनी माँ के बाल नहीं पकडे थे।

                  - 9 अिभयोजन सा ी पी ड         ू -2 बीना िब    के सा   म यह भी

      आया है िक सा ी के िच      ाने पर सा ी की सास दे वकी दे वी व मृ तका की ब
      पी ड    ू -4 नैना कोरं गा भी मौके पर आ गए, तब भी आप िडगर िसंह अपनी

माता के ऊपर वार कर रहे थे और वार करते-करते आपने अपनी माता का िसर धड़ से अलग कर िदया था, उसके उपरां त भी आप अपनी माता पर वार करते रहे। इस स म आपको ा कहना है ?

उ र- हाँ -हाँ , मने मारा। इन गवाहों ने ठीक कहा।

                  - 10 अिभयोजन सा ी पी ड         ू -2 बीना िब के सा     के दौरान
      आप अिभयु        िडगर िसंह को    ायालय म भी पंचना है और बताया िक आप

      उसके पडोशी है और आप अिभयु              ारा ही सा ी के सामने अपनी माता की
      ह ा का रत की। इस स             म आपको       ा कहना है ?
              उ र- ठीक कहा।"

11. In Question Nos.11, 12 and 13, the condemned

prisoner was asked about the assault made by him on the

deceased, as deposed by P.W.3 Devika Devi, and P.W.4 Naina

Koranga and he admitted to have done so. As it is repetition

of the earlier questions, we are of the opinion that there is no

need to quote the same. Thus, there are evidences in the

shape of eye-witnesses, which is duly supported by the

attending circumstances, like verification of the sport, medical

report, and SFSL reports. There is an admission on the part of

the condemned prisoner that the witnesses are telling the

truth. In fact, he has admitted in response to Question No.9

that he has committed the murder of his mother.

12. Sub-Section (4) of Section 313 of the Code reads

as under:-

"(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed".

13. In this connection, the Hon'ble Supreme Court, in

the case of Dharnidhar vs. State of Uttar Pradesh &

others along with other appeal, (2010) 7 SCC 759, has

held that the statement made by the condemned prisoner

under Section 313 of the Code can be made the sole basis of

conviction in a criminal case. We find it appropriate to take

note of the exact words used by the Hon'ble Supreme Court,

which read as under:-

"32. Following the law laid down in Narain Singh vs. State of Punjab, (1963) 3 SCR 678, the Apex Court in State of Maharashtra vs. Sukhdev Singh, (1992) 3 SCC 700, further dealt with the question whether a statement recorded under Section 313 CrPC

can constitute the sole basis for conviction and recorded a finding that the answers given by the accused in response to his examination under Section 313 CrPC of 1973 can be taken into consideration in such an inquiry or trial though such a statement strictly is not evidence and observed in Para 52 thus: [Sukhdev Singh (supra)] "52. Even on first principle we see no reason why the court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under Section 313 of the Code."

It is thus well established in law that admission or confession of the accused in the statement under Section 313 CrPC recorded in the course of trial can be acted upon and the court can rely on these confessions to proceed to convict him".

14. Thus, it is clear that the concession made by the

learned Amicus Curiae is of substance, and we are satisfied

from the evidence recorded, both oral and supporting

evidence, and the confession made by the appellant in the

course of his examination under Section 313 of the Code, that

the learned Ist Additional District & Sessions Judge has not

committed any error on record in convicting the appellant

under Section 302 of the Penal Code.

15. As far as the evidence on record in the convicting

the appellant under Section 307 of the Penal Code is

concerned that he has admitted that in response to Question

No.14 that he assaulted the villagers, but did not assault any

of the police officials. So, this Court is of the opinion that the

conviction of the condemned prisoner under Sections 302 and

307 of the Penal Code requires interference.

16. Then, we have to consider the alternate submission

of the learned Amicus Curiae, who has stated that this is not

a fit case to award death sentence.

17. This issue has extensively been dealt by a three

Judge Bench of the Hon'ble Supreme Court in the case of

Machhi Singh & others vs. State of Punjab, (1983) 3

SCC 470. At Paragraph Nos.38 and 39, the Hon'ble Supreme

Court, by following the Constitution Bench Judge of the

Hon'ble Supreme Court in the case of Bachan Singh vs.

State of Punjab, (1980) 2 SCC 684, have observed as

follows:-

"38. In this background the guidelines indicated in Bachan Singh's case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:

(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."

18. At Paragraph No.39, the Hon'ble Supreme Court

has further held that in applying the guidelines stated above,

the Court must put to itself the question whether there is

something uncommon about the crime which renders

sentence of imprisonment for life inadequate and calls for a

death sentence; and, whether in 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.

19. While deciding whether the crime is uncommon, the

Court has to keep in mind that such a crime has generally not

taken place in the area, or that the crime that has been

committed has shaken the basic fabric of the society. It

should also adversely affect the conscience of the Court so

that it has no other option, but to award the death sentence.

20. In this case, though the learned Ist Additional

District & Sessions Judge has taken into consideration the

enumerated mitigating and aggravating circumstances, she

has not actually dealt with two questions that have to be put

to itself and answered as described at Paragraph No.39 in the

case of Machhi Singh (supra).

21. We are also taking into consideration the case of

Absar Alam @Afsar Alam vs. State of Bihar, (2012) 2

SCC 728, wherein the Hon'ble Supreme Court has considered

whether the appellant beheading of his own mother is not a

rarest of the rare case in which death penalty should be

imposed because offence has been committed by the

appellant in a fit of passion and not after pre-meditation.

22. In this case, we find that the FIR itself shows that

there is some quarrel between the condemned prisoner and

the deceased. So it cannot be said that the condemned

prisoner had deliberately, with pre-meditation, committed the

crime. Hence, the ratio decided by the Hon'ble Supreme

Court in the case if Afsar Alam (supra), is quite squarely

covered the case in hand.

23. Furthermore, we see from the records that there is

no criminal antecedent against the condemned prisoner.

There is no report from the Jail Superintendent that he mis-

conducted himself while being incarcerated. It is also seen

that he has fairly confessed before the Court in his statement

recorded under Section 313 of the Code that he has

committed the murder of his mother. So, in our opinion, the

penalty of death is not appropriate for this case, and it cannot

be held to be rarest of the rare case, in which all other

options are unquestionably foreclosed. Moreover, death

penalty is awarded only when the Court comes to the

conclusion that the condemned prisoner cannot be let back

into the society because of the apprehension that his further

living will be a danger of the society, and that his re-

assimilation in the society would be dangerous to all the

people, who come in contact with him. In this case, there is

no such finding of the learned Ist Additional District &

Sessions Judge.

24. Hence, we are of the opinion that the appeal should

succeed in-part. In that view of the matter, the criminal

appeal is, hereby, allowed in-part. The conviction of the

condemned prisoner under Sections 302 and 307 is, hereby,

confirmed. But, we are inclined to modify the sentence for the

offence under Sections 302 and 307 of the Penal Code. The

appellant is directed to undergo imprisonment for life under

Section 302 of the Penal Code and to pay a fine of

Rs.25,000/- and in default of payment of fine, to undergo

rigorous imprisonment for one year. For the offence under

Section 307 of the Penal Code, the appellant is directed

undergo rigorous imprisonment for a period of ten years, and

to pay a fine of Rs.10,000/-, and in default of payment of

fine, to undergo six months' additional imprisonment.

25. The Criminal Appeal is, accordingly, allowed in-

part, and the Criminal Reference is, answered, accordingly.

26. We express our appreciation for the efforts put in

by Mr. Arvind Vashisth, learned Senior Advocate in this case

appearing as Amicus Curiae for the condemned prisoner, as

he has rendered valuable assistance, pro bono, to us in

disposing of the criminal appeal and criminal reference.

27. Let a copy of this judgment along with TCRs be

sent back to the trial court for forthwith.

(S.K. MISHRA, A.C.J.)

(N.S. DHANIK, J.) Dated: 19TH May, 2022 NISHANT