# Digamber Singh & Ors v. State of U.P

- **Citation:** (2023) 1 ILRA 916
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-13
- **Case number:** Criminal Appeal No. 98 of 1989
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/digamber-singh-ors-v-state-of-u-p-49169
- **Pages:** 7

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 357- Compensation- The
Probation of Offenders Act, 1958 - Section
4 & 5 - Proportionate Sentence- The
charge under Section 323/34 and 325/34
IPC is proved beyond reasonable doubt
against accused Digamber Singh and
Dhanpal Singh- 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- 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.

Though the charges against the appellants
stand proved but as a long time has elapsed
since the commission of the offence, the same
having occurred on the spur of the moment and
was the first offence of the appellants hence
ends of justice shall be met by providing just
compensation to the victims. (Para 17, 24, 26)
1 All. Digamber Singh & Ors. Vs. State of U.P.
917
Criminal Appeal disposed of. (E-3)

Case Law/ Judgements relied upon:-

## Text

916 INDIAN LAW REPORTS ALLAHABAD SERIES
from the petitioner that what is meant by
''area of the University' under Section 2(3)
of the Act, is the land, whereon the campus
is located.

11. We are of opinion that the petition
is not only one that is thoroughly
misconceived, but has been instituted by
the petitioner for some extraneous purpose.
She is a retired Professor of the University
and apparently has nothing to do with the
campus, except some scores to settle. There
is no public interest at all involved in the
petition on merits as well, inasmuch as the
establishment of a big Sub-Station would
cater to the interest of the University as
well, besides other areas. We also noticed
upon a perusal of the lease deed that the
land, whereon the Sub-Station has been
established is Government land and for that
reason, the lease deed has been executed by
the Collector on behalf of the Governor for
a period of 29 years, 11 months and 29
days in favour of the Power Corporation.

12. The petition, being thoroughly
misconceived and lacking bona fides,
deserves to be dismissed with heavy costs.
It is, accordingly, dismissed imposing cost
of Rs. 50,000/- upon the petitioner, which if
not deposited within a month in the
Account
of
the
Registrar
General,
Allahabad High Court Mediation and
Conciliation Centre, shall be recovered by
the District Magistrate, Varanasi as arrears
of land revenue and caused to be credited
in the account aforesaid.

13. Let this order be communicated to
the District Magistrate, Varanasi by the
Registrar (Compliance).
----------
(2023) 1 ILRA 916
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2022

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 98 of 1989

Digamber Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.D.N. Singh, Sri Abhinav Dwivedi

Counsel for the Respondent:
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 357- Compensation- The
Probation of Offenders Act, 1958 - Section
4 & 5 - Proportionate Sentence- The
charge under Section 323/34 and 325/34
IPC is proved beyond reasonable doubt
against accused Digamber Singh and
Dhanpal Singh- 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- 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.

Though the charges against the appellants
stand proved but as a long time has elapsed
since the commission of the offence, the same
having occurred on the spur of the moment and
was the first offence of the appellants hence
ends of justice shall be met by providing just
compensation to the victims. (Para 17, 24, 26)
1 All. Digamber Singh & Ors. Vs. State of U.P.
917
Criminal Appeal disposed of. (E-3)

Case Law/ Judgements relied upon:-

1. Accused 'X' Vs St. of Maha., (2019) 7 SCC 1)

2. St. of M.P Vs Vikram Das (2019) 4 SCC 125)

3. Manohar Singh Vs St. of Raj. & ors., (2015) 3
SCC 449
(Delivered by Hon'ble Surendra Singh-I, J.)

1. 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.

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.

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.

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.

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
918 INDIAN LAW REPORTS ALLAHABAD SERIES
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 thereof is
Ex.Ka.6. The registration of criminal case
was entered in GD which is Ex.Ka.9.

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.

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 SubInspector 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
charge-sheet (Ex.Ka.20) under Section 302
IPC against Digamber Singh, Gorakhnath
Singh, Bachchu Singh and Dhanpal Singh.

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.

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.

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 Sub-Inspector
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.

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.

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.
1 All. Digamber Singh & Ors. Vs. State of U.P.
919

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 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).

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.

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.

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 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.

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
920 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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

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.

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.

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.

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.

"...
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)

"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).

13. 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
1 All. Digamber Singh & Ors. Vs. State of U.P.
921
support
of
amenity;
(iii)
extent
of
humiliation; and (iv) privacy breach."
(State of Madhya Pradesh vs. Udham
and others (2019) 10 SCC 300)"

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)

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.

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:

"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 357- A.
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."

"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."

"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 the very object behind the
introduction of the provision."

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
922 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

27. The criminal appeal is disposed of
accordingly.

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.
----------
(2023) 1 ILRA 922
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 703 of 2017

Anil ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri Ramendra Pal Singh, Sri
Veerendra Kumar Shukla, Sri Tripurari Pal

Counsel for the Respondent:
G.A.

Criminal
Law-
Indian
Evidence
Act-
Sections
101
&
106
-Dowry
death-
Demand of additional dowry could not be
proved by the prosecution- The witnesses
of fact turned hostile- learned trial court
has also reached to the conclusion that
death of the deceased was not within the
four corners of dowry death- The learned
trial court had held that it is the statement
of appellant in his statement u/s 313 of
Cr.P.C. that he and deceased used to
reside in separate house from his parents.
Hence, learned trial court shifted the
burden on the shoulders of the appellant
to prove the factum of death of deceased
as to how she died- When the offence like
murder is committed in secrecy inside the
house, the initial burden to establish the
case would undoubtedly be upon the
prosecution-
There
will
be
a
corresponding burden on the inmates of
the house to give cogent explanation as to
how the crime was committed- The initial
burden of proving that, as on the date of
the alleged incident, the accused was
present in the house of lastly seen with
the deceased or that he was lastly in the
company of the deceased at the time of
the incident would be primarily upon the
prosecution- The prosecution has not
brought forward any evidence which could
at least establish the fact that at the time
of occurrence, the appellant was inside
the house. Hence, there is no applicability
of Section 106 of Indian Evidence Act in
this case- Prosecution has not discharged
its burden to prove the case beyond
reasonable doubt and no reverse burden
could be placed on the accused with the
aid of Section 106 of Indian Evidence Act
when the prosecution has not discharged
its burden first.