Digambar vs The State Of Maharashtra

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 221-222 OF 2022

DIGAMBAR ...APPELLANT(S) VERSUS THE STATE OF MAHARASHTRA ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 280 OF 2023

JUDGMENT

B.R. GAVAI, J.

1. The present criminal appeals arise out of the common

Judgment & Order dated 13th December 2021 passed by the

Aurangabad Bench of the Bombay High Court in

Confirmation Case No. 1 of 2019 and Criminal Appeal Nos.

808 and 810 of 2019 whereby the High Court confirmed the

death penalty and life imprisonment imposed upon the

Accused No. 1-Digambar (Appellant in Criminal Appeal Nos. Signature Not Verified Digitally signed by Narendra Prasad Date: 2023.04.28 15:44:50 IST Reason: 221-222/2022) and Accused No. 2-Mohan (Appellant in

1 Criminal Appeal No. 280/2023) respectively, for conviction

for the offence punishable under Section 302 of the Indian

Penal Code, 1860 (hereinafter referred to as “IPC”) read with

Section 34 IPC.

2. These Criminal Appeals arise from conspectus of facts

adumbrated as follows:

2.1. Pooja (Deceased) was married to one Jethiba

Hashanna Varshewar on 10th June 2017. Pooja was

having a love affair with one Govind (Deceased) for

the past 5 years. The Appellant/Accused- Digambar

is the brother of Pooja.

2.2. On 22nd July 2017, Pooja left her matrimonial home

without informing anybody. Thus, her husband had

lodged a missing report at Bhokar Police Station on

the same day.

2.3. The Accused Digambar, having knowledge of the love

affair of Pooja and Govind, was suspicious that Pooja

might have gone with Govind. Thus, on 22 nd July

2017 itself, he called Govind on his mobile

whereupon Govind informed him that Pooja was not

2 with him and he can do whatever he wants. The

Accused Digambar searched for Pooja at various

places but she was not to be found. During the

search, he called Govind twice or thrice and each

time Govind informed him that Pooja was not with

him. The Accused Digambar tried calling Govind in

the night, but his phone was switched off and

Digambar took this as an indication that Pooja was

with him.

2.4. Next day, i.e., on 23rd July 2017, the Accused

Digambar along with co-accused Mohan went to the

house of the sister of Govind. In the said house, he

found Govind as well as Pooja. The Accused

Digambar assured Pooja that he will get her married

to Govind since they both are in love for the past 5

years. Pooja was convinced with Digambar’s

assurance but she denied to go without Govind.

Thus, the Accused Digambar and Mohan along with

Pooja and Govind left that place on motorcycle.

3 2.5. Near Village Beltaroda, the Accused Digambar asked

Pooja and Govind to wait for some time. The Accused

Digambar visited his Aunt’s house and picked up a

sickle from there and concealed it near his waist.

After coming back to the spot where Pooja and

Govind were waiting for him, the Accused took the

duo along with himself to his village. En route, he

stopped his motorcycle near a canal and tried to

convince them, but they were not ready to listen. At

that time the Accused Digambar took out the sickle

and assaulted on Govind’s throat. When Pooja tried

to get hold of him, he removed the handle of the

sickle and thrust the backside of the sickle in Pooja’s

neck. These attacks by the Accused Digambar

resulted in death of the duo.

2.6. The Accused then rushed to the Bhokar Police

Station and himself lodged the FIR No. 404/2007

that he has committed the aforesaid crime.

2.7. Pursuant to the investigation, chargesheet was filed

and trial was conducted by the court of Additional

4 Sessions Judge at Bhokar, Nanded. The Trial Court,

vide its judgment dated 17th July 2019, convicted the

Accused Digambar for the offences punishable under

Sections 302/201/120-B of IPC and sentenced him

to death penalty while the Accused Mohan was

convicted for the offences punishable under Sections

302/201/34/120-B of IPC and sentenced to undergo

life imprisonment.

2.8. The Accused Digambar had filed Criminal Appeal No.

810/2019 and the Accused Mohan had filed Criminal

Appeal No. 808/2019 before the High Court.

Confirmation Case No. 1/2019 was also lodged for

confirmation of the death sentence imposed upon the

Accused Digambar.

2.9. Vide the impugned judgment, the High Court

confirmed the death sentence imposed upon the

Accused Digambar and dismissed the Criminal

Appeals.

3. We have heard Shri Sudhanshu S. Choudhari and Shri

Subodh S. Patil, learned counsel appearing on behalf of the

5 appellants and Shri Chinmoy Khaladkar, learned counsel

appearing on behalf of the State.

4. Shri Choudhari submits that both the Trial Court and

the High Court have grossly erred in convicting the appellant.

He submits that the confessional statement made by the

appellant Digambar to the Police could not have been relied

on for resting the conviction. He submits that apart from the

extra-judicial confession, there is absolutely no evidence to

convict the appellants. He further submits that it is

improbable that both the appellants and the two deceased

travelled on one motor-cycle. Learned counsel submits that

only on the basis of the evidence of last seen together,

without there being any corroboration, the conviction could

not have been recorded by the Trial Court.

5. Shri Subodh Patil also submits that the gap between

the appellants being last seen in the company of the

deceased and the deceased found to be dead is long enough

to give benefit of doubt to the appellants.

6. Shri Choudhari submits that, in any case, the present

case is not a fit case for sentencing the appellant-Digambar

6 to death penalty. He submits that the present case cannot

be considered to be a ‘rarest of rare’ case so as to award

death penalty.

7. Shri Chinmoy Khaladkar, on the contrary, submits that

the Trial Court as well as the High Court have rightly found

that the appellants had committed the ghastly murder and

awarded a capital sentence. He submits that the present

case is nothing but a case of honour killing. It is submitted

that since the accused were opposed to the deceased Pooja

having an affair with deceased Govind, the accused have

assaulted and killed the deceased. Learned counsel submits

that applying both the crime and the criminal tests,

interference with the capital punishment would not be

warranted. He submits that the appellant-Digambar is not

an illiterate person. He is an educated person and was also

using a smartphone. It is submitted that the conduct of an

educated person committing such a heinous crime cannot be

pardoned. He, therefore, prays for dismissal of the appeals.

8. With the assistance of the learned counsel, we have

scrutinized the material evidence on record.

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9. The prosecution case mainly rests on the circumstances

of the accused being lastly seen in the company of the

deceased, and the death of the deceased occurring shortly

thereafter.

10. Insofar as the last seen theory is concerned, the

prosecution mainly relies on the evidence of P.W.5-Shankar

and P.W.6-Santosh.

11. P.W.5-Shankar is brother-in-law of deceased Govind.

He stated in his evidence that on 22nd July 2017 at about

6.00 a.m., Govind told him that Pooja called him on mobile

phone. Pooja told Govind that she ran away to Nanded from

her house and she called Govind at Nanded. He stated that,

at about 6.00 p.m., Pooja came to his house. Thereafter, on

the cell phone of his niece Punam, he contacted his brother-

in-law Santosh (P.W.6) and told him that Pooja had come to

his house. He stated that he tried to convince Pooja that her

conduct was not proper and that he would call her father on

mobile. However, Pooja told him that he should not tell

anybody because she would not leave Govind as she was in

love with Govind since the last 5 years.

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12. P.W.5-Shankar further stated in his evidence that on

23rd July 2017, in the morning at about 8.00 to 9.00 a.m.,

both the accused persons came to his house. Digambar told

him that you know as to what type of person I am. When he

asked about Pooja, P.W.5-Shankar told him that she was in

the house. P.W.5-Shankar further stated that Digambar told

him that he was aware that Pooja and Govind had a love

affair since the last 5 years and, therefore, their marriage

would be performed. P.W.5-Shankar told Digambar that

such type of marriage was not possible because Pooja is

already married. On this, Digambar told him that Govind

was his friend since childhood and thus he would get him

married to his sister, Pooja. Pooja told Govind that Digambar

is her brother and she had faith on him that he would

perform her marriage with Govind. P.W.5-Shankar stated

that Pooja told that she will not leave Govind. At that point

of time, accused No.2-Mohan abused them. Thereafter, both

the accused and both the deceased had left on the

motorcycle. Accused Mohan was driving the motorcycle,

Pooja and Govind were sitting in between and Digambar was

9 sitting behind them. He stated that after some time, he and

his brother-in-law Santosh (P.W.6) proceeded towards

Mudhol by autorickshaw. He called Govind on his cell phone

and asked him where he was. Govind told him that he was

ahead of village Beltaroda. He asked Govind to give cell

phone to Digambar. However, Digambar switched off the cell

phone without talking with him. He further stated that, at

that time, his brother-in-law Santosh received phone call

from Bhokar Police Station on his mobile, who informed him

that his brother Govind and Pooja were killed in between

village Divshi to village Nigva.

13. Though P.W.5-Shankar was thoroughly cross-examined,

his statement, insofar as the accused and the deceased

leaving together from the house of the said witness, is not

shattered.

14. Similar is the evidence of P.W.6-Santosh, who is the

brother of the deceased.

15. P.W.7-Sudam Kishanrao Thakre was a Police Head

Constable, who was attached to the Bhokar Police Station at

the relevant time. He, in his examination-in-chief, has stated

10 that, on 23rd July 2017, at 1415 hours, he received phone

call form LPC Mundhe, informing that a murder was

committed of one girl and boy in between Divsi to Nigva. He

went there and saw that one girl was injured and when he

inquired her about the boy, then she pointed her finger

towards the river. He searched near river and he found one

body soaked up in blood. He submitted that he intended to

take the injured girl to the hospital. However, she

succumbed to the injuries at the spot.

16. P.W.8-Sushilkumar Pralhad Chavan was the Police

Sub-Inspector, who recorded the confessional statement of

the accused-Digambar and conducted the investigation.

17. Though the extra-judicial confession of the accused-

Digambar cannot be taken into consideration, however, his

conduct of going to the Police Station and surrendering

before the Police can certainly be taken into consideration in

view of Section 8 of the Indian Evidence Act, 1872

(hereinafter referred to as “the Indian Evidence Act”)

18. It could thus be seen that the prosecution has

established that the deceased and the accused persons left

11 the house of P.W.5-Shankar together and soon thereafter the

death of the deceased person had occurred. As such, the

burden to show as to what happened after leaving the house

would shift on the accused in view of Section 106 of the

Indian Evidence Act. It is to be noted that what transpired

after the accused left along with the deceased, is only within

the knowledge of the accused. However, the accused persons

have utterly failed to discharge the said burden.

19. In that view of the matter, we find that no interference

would be warranted with the concurrent findings of the Trial

Court and the High Court that the accused appellants are

guilty of offence punishable under Section 302 of the IPC.

20. However, the only question that arises is, as to whether

the present case could be considered as one to be ‘rarest of

the rare’ so as to award death penalty.

21. In the case of State of Uttar Pradesh v. Krishna

Master and others1, the accused had killed six persons and

wiped of almost the whole family on the ground of saving the

honour of the family. In the said case, though this Court

found that the same would fall within the ‘rarest of the rare’ 1 (2010) 12 SCC 324

12 case, it commuted the capital sentence to the one to rigorous

imprisonment for life and fine of Rs.25,000/- each.

22. This Court in the case of Gandi Doddabasappa alias

Gandhi Basavaraj v. State of Karnataka2, wherein the

accused had committed murder of his daughter, who was in

the advanced stage of pregnancy, though upheld the

conviction of the accused under Section 302 IPC, but

commuted the sentence from capital punishment to

imprisonment for life.

23. There are certain other precedents of this Court as to

which cases would fall under the category of ‘rarest of rare’

case.

24. In the case of Prakash Dhawal Khairnar (Patil) v.

State of Maharashtra3, the appellant was a Senior

Scientific Assistant. He wiped out his brother’s entire family.

This Court found that this was done by him on account of

frustration as his brother was not partitioning the alleged

joint property. Though this Court held that the crime was

heinous and brutal, but it could not be considered to be

2 (2017) 5 SCC 415

3 (2002) 2 SCC 35

13 ‘rarest of rare’ case. This Court held that, it is difficult to

hold that appellant is a menace to the society and that there

is no reason to believe that he cannot be reformed or

rehabilitated.

25. In the case of Mohinder Singh v. State of Punjab4,

this Court observed thus:

“25. It is well-settled law that awarding of life sentence is a rule and death is an exception. The application of the “rarest of rare” cases principle is dependent upon and differs from case to case. However, the principles laid down and reiterated in various decisions of this Court show that in a deliberately planned crime, executed meticulously in a diabolic manner, exhibiting inhuman conduct in a ghastly manner, touching the conscience of everyone and thereby disturbing the moral fibre of the society, would call for imposition of the capital punishment in order to ensure that it acts as a deterrent. While we are convinced that the case of the prosecution based on the evidence adduced confirms the commission of offence by the appellant, however, we are of the considered opinion that still the case does not fall within the four corners of the “rarest of rare” cases.

4 (2013) 3 SCC 294

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26. In the said case, the accused had committed murder of

his wife and daughter. However, this Court found that the

said could not be considered to be ‘rarest of rare’ case.

27. Recently, this Court, in the case of Sundar @

Sundarrajan v State by Inspector of Police5, held that

‘rarest of rare’ doctrine does not require that in such a case

only death sentence has to be imposed. This Court held that,

while considering as to whether the death sentence is to be

inflicted or not, the Court will have to consider not only the

grave nature of crime but also as to whether there was a

possibility of reformation of a criminal.

28. In the present case, both the appellants do not have any

criminal antecedents. The appellant-Digambar, who has

been sentenced to capital punishment, was a young boy of

about 25 years at the time of the incident. The medical

evidence would further reveal that the appellants have not

acted in a brutal manner, inasmuch as there is only single

injury inflicted on both the deceased. As such, we find that

the present case cannot be considered to be ‘rarest of rare’

5 Review Petition (Criminal) Nos. 159-160 of 2013 in Criminal Appeal Nos. 300-301 of 2011 dated 21st March 2023

15 case. In any case, the report of the Probation Officer, Nanded

as well as the Superintendent, Nashik Road Central Prison

would show that the appellant-Digambar has been found to

be well-behaved, helping and a person with leadership

qualities. He is not a person with criminal mindset and

criminal records.

29. The report of the Probation Officer, Nanded further

states thus:

“The Sarpanch and the people in the village stated that, the inter-caste marriage of Deceased friend Govind and Deceased sister Pooja was putting the social pressure and being angry about it, the subjected incidence was happened in sudden provocation by Digambar. Overall, everyone who were present during the Home Inquiry gave the good opinion about the behavior of Digambar baburao Dasre.”

30. We are, therefore, of the considered view that the High

Court as well as the Trial Court erred in holding that the

present case would fall under the ‘rarest of rare’ case to

award capital punishment to appellant-Digambar. We are,

therefore, inclined to partly allow the appeals of appellant-

Digambar. However, insofar as the appellant-Mohan, who

16 has been awarded a sentence of life imprisonment, is

concerned, we find that there is no reason to interfere.

31. In the result, we pass the following order:

(i) Criminal Appeal filed by appellant-Mohan is

dismissed.

(ii) Criminal Appeals filed by appellant-Digambar are

partly allowed. Though the conviction of the

appellant-Digambar under Section 302 IPC is

maintained, the sentence of capital punishment is

commuted to life imprisonment.

32. Pending application(s), if any, shall stand disposed of.

…..….......................J. [B.R. GAVAI]

…….........................J. [VIKRAM NATH]

…….........................J. [SANJAY KAROL]

NEW DELHI;

APRIL 28, 2023.

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