It is a settled principle of law that this Court
cannot appreciate the entire evidence de novo in
a routine manner while hearing the criminal
appeal and that too when the conviction is based
on concurrent findings of two courts. It is only
when this Court comes to a conclusion that the
impugned finding though concurrent in nature is
wholly arbitrary, unreasonable or/and perverse
to the extent that no judicial mind of average
capacity can ever record such conclusion, the
Court may in appropriate case undertake the
exercise of appreciating the evidence to the extent
necessary to find out the error.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 411 OF 2008
Jagdish Appellant(s)
VERSUS
State of Haryana Respondent(s)
Dated:June 29, 2016
Abhay Manohar Sapre, J.
1) This appeal is filed against the final
judgment and order dated 06.11.2007 passed by
the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No. 34-SB of
2004 whereby the High Court dismissed the
appeal filed by the appellant herein and upheld
the judgment of Trial Court dated 20.12.2003 in
Session Trial No. 137/25.08.2003 convicting the
appellant herein for the offences punishable
under Section 304 Part II and Section 323 of the
Indian Penal Code, 1860 (hereinafter referred to
as “the IPC”) and sentenced him to undergo
rigorous imprisonment for five years with a fine of
Rs.2000/- under Section 304 Part II of IPC and
for a term of one year for the commission of the
offence punishable under Section 323 of IPC.
Both the sentences were to run concurrently. In
default of payment of fine, to undergo further
rigorous imprisonment for six months.
2) The prosecution case in brief is as under:
It is a case of free fight between two sets of
relatives in street which was joined by other
people too to get the fight stopped causing the
death of Zile Singh and simple injuries on the
persons of Phoola Ram, Raj Kumar and Krishan
Pal.
3) Zile Singh, Krishan Pal, Raj Kumar and
Phoola Ram are the residents of village Mowana.
On 15.06.2001, at about 4.30-5.00 p.m., when
Phoola Ram, after doing his day’s work, was
returning home and he was about to reach home,
Nafe Singh armed with gandasi came and
challenged and abused him and inflicted a gadasi
blow on his head. On hearing the cry of Phoola
Ram, Zile Singh and Raj Kumar, sons of Phoola
Ram and Krishan Pal, his grandson came there
to rescue him. In the meantime, Jagdish armed
with lathi came and inflicted lathi blow on each of
his hands. Ranjit and Rameshwar also reached
there and inflicted lathi blow to Raj Kumar and
Krishan Pal, Dharma, son of Sadhu Ram inflicted
lathi blow on his shoulder, Jagdish and Ranjit
inflicted lathi blow to Zile Singh, who fell
unconscious. Arjun, son of Shankar Gadaria and
many other villagers rushed to the spot and
rescued them from the clutches of the accused.
4) The injured persons were shifted to hospital.
On 21.06.2001, Zile Singh, injured succumbed to
his injuries.
5) On the statement of Phoola Ram, FIR No.
280 was registered against the accused persons
at the Police Station, Safidon. On the death of
Zile Singh, inquest was conducted and his body
was sent for post mortem. The post mortem
report shows that the injuries on the body of Zile
Singh-deceased were ante-mortem in nature and
sufficient to cause death in the ordinary course of
nature.
6) The accused persons were arrested and
interrogated and the weapons were recovered.
The accused persons, namely, Ranjit,
Rameshwar, Dharma and Jagdish, sons of Sadhu
Ram and Nafe, son of Jagdish were charged
under Sections 302/324/323 read with Section
34 IPC and the case was committed to the Court
of Additional Sessions Judge, Jind.
7) The prosecution examined 14 witnesses. In
defence, three witnesses were examined.
8) By judgment dated 20.12.2003 in Sessions
Trial No. 137/25.08.2003, the Trial Court
convicted Jagdish, the appellant herein for the
offences punishable under Section 304 Part II
and Section 323 of the IPC and sentenced him to
undergo rigorous imprisonment for five years
with a fine of Rs.2000/- under Section 304 Part II
of IPC and for a term of one year for the
commission of the offence punishable under
Section 323 of IPC. Both the sentences were to
run concurrently. In default of payment of fine,
to undergo further rigorous imprisonment for six
months.
9) Nafe Singh was convicted under Section 324
and sentenced to the period already undergone
by him in jail.
10) Rameshwar and Dharma were convicted
under Section 323 IPC and sentenced to the
period already undergone by them. Ranjit was
sentenced under Section 323 IPC and sentenced
to the period already undergone by him.
11) Challenging the order of conviction and
sentence of the Trial Court, appeals being Crl.A.
Nos.34-SB and 637 of 2004 were filed. The High
Court, by impugned judgment dated 06.11.2007
dismissed both the appeals upholding the
judgment of the Trial Court.
12) Aggrieved by the said judgment in Crl.A.
No.34-SB of 2004, the appellant-accused
(Jagdish) has filed this appeal by way of special
leave before this Court.
13) Heard learned counsel for the parties.
14) Learned counsel for the appellant while
assailing the legality and correctness of the
impugned order submitted that the prosecution
has failed to prove the case against the appellant
and, therefore, both the Courts below erred in
convicting the appellant under Section 304 Part II
read with Section 323 of IPC for the death of Zile
Singh.
15) It was his submissions that firstly, there
was no evidence to prove the complicity of the
appellant in the crime, which caused death of
Zile Singh; Secondly, the evidence adduced by
the prosecution was not sufficient to sustain the
appellant’s conviction under the aforementioned
twin Sections; Thirdly, assuming that there was
evidence yet both the Courts failed to properly
appreciate the same,therefore, conviction is bad
in law; Fourthly, since no blood stains were
noticed on the spot and hence the Courts below
erred in holding that the incident had taken place
at the site; Fifthly, there was no evidence to prove
that the appellant was present on the spot when
the alleged incident took place and hence he
could not be implicated for commission of the
offence; and lastly, in the absence of any injury
on the appellant's body, it is difficult to hold that
the appellant was involved in the commission of
offence.
16) It is these submissions, which were
elaborated by the learned counsel by referring to
evidence on record.
17) In reply, learned counsel for the respondent
supported the impugned order and contended
that no case is made out to interfere in the
impugned order. Learned counsel urged that the
prosecution was able to prove beyond reasonable
doubt against the appellant that he was involved
in the commission of offence and was present on
the spot with lathi and gave several blows to Zile
Singh, which caused him the death. Learned
counsel pointed out that the entire incident was
witnessed by three eye-witnesses, namely
PW-2-Raj Kumar, PW-10-Kishanpal and PW-12-
Complainant and their evidence was properly
appreciated by the two Courts for recording the
appellant's conviction for the offences in
question.
18) Having heard the learned counsel for the
parties and on perusal of the record of the case,
we find no merit in this appeal.
19) It is a settled principle of law that this Court
cannot appreciate the entire evidence de novo in
a routine manner while hearing the criminal
appeal and that too when the conviction is based
on concurrent findings of two courts. It is only
when this Court comes to a conclusion that the
impugned finding though concurrent in nature is
wholly arbitrary, unreasonable or/and perverse
to the extent that no judicial mind of average
capacity can ever record such conclusion, the
Court may in appropriate case undertake the
exercise of appreciating the evidence to the extent
necessary to find out the error.
20) In this case, we have not been able to notice
any arbitrariness or/and unreasonableness in
the concurrent finding of the two courts below
inasmuch as the learned counsel for the
appellant was not able to point out any kind of
illegality in the finding, which would persuade us
to re-appreciate the entire evidence.
21) On the other hand we find that two courts
below were justified in appreciating the evidence
of PWs 2, 10 and 12 who were held to be the
eye-witnesses and rightly came to a conclusion
that the appellant was armed with lathi and gave
blows to the deceased and was, therefore,
responsible for causing death of Zile Singh.
22) A concurrent finding of two courts, which is
based on appreciation of oral evidence on a
question as to whether the appellant (accused)
was present on the spot, whether he gave blow to
deceased and, if so, how many etc. is binding on
this Court. It is more so when no illegality was
pointed out in the finding warranting any
interference.
23) Even then we perused the evidence of PWs
2,10 and 12 and find that it is consistent on all
the material issues. It cannot be disputed that all
the three witnesses witnessed the incident, which
occurred in the evening. There is nothing on
record to suggest that these witnesses had any
kind of enmity against the appellant or that they
were closely related to the deceased or
complainant or/and his family. In the absence of
anything against these witnesses, their testimony
deserves to be accepted and was, therefore,
rightly accepted by the two courts below.
24) In the light of foregoing discussion, we have
no hesitation in upholding the findings of the two
Courts below and hold accordingly that firstly,
incident in question did take place as alleged by
the prosecution; Secondly, the appellant was
present on the spot along with other accused;
Thirdly, the appellant was armed with lathi; and
Fourthly, the appellant gave lathi blows to Zile
Singh due to which he died.
25) So far as the submissions of the learned
counsel for the appellant are concerned, since we
perused the evidence and find no error in the
findings of the Courts below, the submissions
urged deserve rejection. They have otherwise no
merit being wholly based on appreciation of the
evidence and the facts.
26) In our view, merely because the blood stains
were not found on the spot by itself is no ground
to hold that the appellant was not involved in the
incident and that no such incident had taken
place as urged by the learned counsel for the
appellant. We find that this ground was not
urged in the Courts below. In any event, in the
light of overwhelming evidence of as many as
three eye-witnesses, it is proved beyond
reasonable doubt that the appellant was involved
in the incident and being armed with lathi gave
blows with the lathi causing injuries to the
deceased.
27) In the light of foregoing discussion, the
Courts below were justified in holding that the
prosecution was able to prove the case beyond
reasonable doubt against the appellant.
28) Since the State has not come up in appeal
against the sentence awarded to the appellant
and nor the appellant has challenged the award
of sentence to him, we need not examine the
adequacy or inadequacy of the sentence awarded
to the appellant.
29) In view of foregoing discussion, we find no
merit in this appeal, which fails and is
accordingly dismissed.
30) As a result, the bail granted to the appellant
by this Court by order dated 15.05.2008 is
cancelled and the appellant is directed to
surrender before the Trial Court so as to enable
him to undergo remaining period of sentence out
of the total sentence awarded by the Courts
below.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[ASHOK BHUSHAN]
New Delhi,
June 29, 2016
Print Page
cannot appreciate the entire evidence de novo in
a routine manner while hearing the criminal
appeal and that too when the conviction is based
on concurrent findings of two courts. It is only
when this Court comes to a conclusion that the
impugned finding though concurrent in nature is
wholly arbitrary, unreasonable or/and perverse
to the extent that no judicial mind of average
capacity can ever record such conclusion, the
Court may in appropriate case undertake the
exercise of appreciating the evidence to the extent
necessary to find out the error.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 411 OF 2008
Jagdish Appellant(s)
VERSUS
State of Haryana Respondent(s)
Dated:June 29, 2016
Abhay Manohar Sapre, J.
1) This appeal is filed against the final
judgment and order dated 06.11.2007 passed by
the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No. 34-SB of
2004 whereby the High Court dismissed the
appeal filed by the appellant herein and upheld
the judgment of Trial Court dated 20.12.2003 in
Session Trial No. 137/25.08.2003 convicting the
appellant herein for the offences punishable
under Section 304 Part II and Section 323 of the
Indian Penal Code, 1860 (hereinafter referred to
as “the IPC”) and sentenced him to undergo
rigorous imprisonment for five years with a fine of
Rs.2000/- under Section 304 Part II of IPC and
for a term of one year for the commission of the
offence punishable under Section 323 of IPC.
Both the sentences were to run concurrently. In
default of payment of fine, to undergo further
rigorous imprisonment for six months.
2) The prosecution case in brief is as under:
It is a case of free fight between two sets of
relatives in street which was joined by other
people too to get the fight stopped causing the
death of Zile Singh and simple injuries on the
persons of Phoola Ram, Raj Kumar and Krishan
Pal.
3) Zile Singh, Krishan Pal, Raj Kumar and
Phoola Ram are the residents of village Mowana.
On 15.06.2001, at about 4.30-5.00 p.m., when
Phoola Ram, after doing his day’s work, was
returning home and he was about to reach home,
Nafe Singh armed with gandasi came and
challenged and abused him and inflicted a gadasi
blow on his head. On hearing the cry of Phoola
Ram, Zile Singh and Raj Kumar, sons of Phoola
Ram and Krishan Pal, his grandson came there
to rescue him. In the meantime, Jagdish armed
with lathi came and inflicted lathi blow on each of
his hands. Ranjit and Rameshwar also reached
there and inflicted lathi blow to Raj Kumar and
Krishan Pal, Dharma, son of Sadhu Ram inflicted
lathi blow on his shoulder, Jagdish and Ranjit
inflicted lathi blow to Zile Singh, who fell
unconscious. Arjun, son of Shankar Gadaria and
many other villagers rushed to the spot and
rescued them from the clutches of the accused.
4) The injured persons were shifted to hospital.
On 21.06.2001, Zile Singh, injured succumbed to
his injuries.
5) On the statement of Phoola Ram, FIR No.
280 was registered against the accused persons
at the Police Station, Safidon. On the death of
Zile Singh, inquest was conducted and his body
was sent for post mortem. The post mortem
report shows that the injuries on the body of Zile
Singh-deceased were ante-mortem in nature and
sufficient to cause death in the ordinary course of
nature.
6) The accused persons were arrested and
interrogated and the weapons were recovered.
The accused persons, namely, Ranjit,
Rameshwar, Dharma and Jagdish, sons of Sadhu
Ram and Nafe, son of Jagdish were charged
under Sections 302/324/323 read with Section
34 IPC and the case was committed to the Court
of Additional Sessions Judge, Jind.
7) The prosecution examined 14 witnesses. In
defence, three witnesses were examined.
8) By judgment dated 20.12.2003 in Sessions
Trial No. 137/25.08.2003, the Trial Court
convicted Jagdish, the appellant herein for the
offences punishable under Section 304 Part II
and Section 323 of the IPC and sentenced him to
undergo rigorous imprisonment for five years
with a fine of Rs.2000/- under Section 304 Part II
of IPC and for a term of one year for the
commission of the offence punishable under
Section 323 of IPC. Both the sentences were to
run concurrently. In default of payment of fine,
to undergo further rigorous imprisonment for six
months.
9) Nafe Singh was convicted under Section 324
and sentenced to the period already undergone
by him in jail.
10) Rameshwar and Dharma were convicted
under Section 323 IPC and sentenced to the
period already undergone by them. Ranjit was
sentenced under Section 323 IPC and sentenced
to the period already undergone by him.
11) Challenging the order of conviction and
sentence of the Trial Court, appeals being Crl.A.
Nos.34-SB and 637 of 2004 were filed. The High
Court, by impugned judgment dated 06.11.2007
dismissed both the appeals upholding the
judgment of the Trial Court.
12) Aggrieved by the said judgment in Crl.A.
No.34-SB of 2004, the appellant-accused
(Jagdish) has filed this appeal by way of special
leave before this Court.
13) Heard learned counsel for the parties.
14) Learned counsel for the appellant while
assailing the legality and correctness of the
impugned order submitted that the prosecution
has failed to prove the case against the appellant
and, therefore, both the Courts below erred in
convicting the appellant under Section 304 Part II
read with Section 323 of IPC for the death of Zile
Singh.
15) It was his submissions that firstly, there
was no evidence to prove the complicity of the
appellant in the crime, which caused death of
Zile Singh; Secondly, the evidence adduced by
the prosecution was not sufficient to sustain the
appellant’s conviction under the aforementioned
twin Sections; Thirdly, assuming that there was
evidence yet both the Courts failed to properly
appreciate the same,therefore, conviction is bad
in law; Fourthly, since no blood stains were
noticed on the spot and hence the Courts below
erred in holding that the incident had taken place
at the site; Fifthly, there was no evidence to prove
that the appellant was present on the spot when
the alleged incident took place and hence he
could not be implicated for commission of the
offence; and lastly, in the absence of any injury
on the appellant's body, it is difficult to hold that
the appellant was involved in the commission of
offence.
16) It is these submissions, which were
elaborated by the learned counsel by referring to
evidence on record.
17) In reply, learned counsel for the respondent
supported the impugned order and contended
that no case is made out to interfere in the
impugned order. Learned counsel urged that the
prosecution was able to prove beyond reasonable
doubt against the appellant that he was involved
in the commission of offence and was present on
the spot with lathi and gave several blows to Zile
Singh, which caused him the death. Learned
counsel pointed out that the entire incident was
witnessed by three eye-witnesses, namely
PW-2-Raj Kumar, PW-10-Kishanpal and PW-12-
Complainant and their evidence was properly
appreciated by the two Courts for recording the
appellant's conviction for the offences in
question.
18) Having heard the learned counsel for the
parties and on perusal of the record of the case,
we find no merit in this appeal.
19) It is a settled principle of law that this Court
cannot appreciate the entire evidence de novo in
a routine manner while hearing the criminal
appeal and that too when the conviction is based
on concurrent findings of two courts. It is only
when this Court comes to a conclusion that the
impugned finding though concurrent in nature is
wholly arbitrary, unreasonable or/and perverse
to the extent that no judicial mind of average
capacity can ever record such conclusion, the
Court may in appropriate case undertake the
exercise of appreciating the evidence to the extent
necessary to find out the error.
20) In this case, we have not been able to notice
any arbitrariness or/and unreasonableness in
the concurrent finding of the two courts below
inasmuch as the learned counsel for the
appellant was not able to point out any kind of
illegality in the finding, which would persuade us
to re-appreciate the entire evidence.
21) On the other hand we find that two courts
below were justified in appreciating the evidence
of PWs 2, 10 and 12 who were held to be the
eye-witnesses and rightly came to a conclusion
that the appellant was armed with lathi and gave
blows to the deceased and was, therefore,
responsible for causing death of Zile Singh.
22) A concurrent finding of two courts, which is
based on appreciation of oral evidence on a
question as to whether the appellant (accused)
was present on the spot, whether he gave blow to
deceased and, if so, how many etc. is binding on
this Court. It is more so when no illegality was
pointed out in the finding warranting any
interference.
23) Even then we perused the evidence of PWs
2,10 and 12 and find that it is consistent on all
the material issues. It cannot be disputed that all
the three witnesses witnessed the incident, which
occurred in the evening. There is nothing on
record to suggest that these witnesses had any
kind of enmity against the appellant or that they
were closely related to the deceased or
complainant or/and his family. In the absence of
anything against these witnesses, their testimony
deserves to be accepted and was, therefore,
rightly accepted by the two courts below.
24) In the light of foregoing discussion, we have
no hesitation in upholding the findings of the two
Courts below and hold accordingly that firstly,
incident in question did take place as alleged by
the prosecution; Secondly, the appellant was
present on the spot along with other accused;
Thirdly, the appellant was armed with lathi; and
Fourthly, the appellant gave lathi blows to Zile
Singh due to which he died.
25) So far as the submissions of the learned
counsel for the appellant are concerned, since we
perused the evidence and find no error in the
findings of the Courts below, the submissions
urged deserve rejection. They have otherwise no
merit being wholly based on appreciation of the
evidence and the facts.
26) In our view, merely because the blood stains
were not found on the spot by itself is no ground
to hold that the appellant was not involved in the
incident and that no such incident had taken
place as urged by the learned counsel for the
appellant. We find that this ground was not
urged in the Courts below. In any event, in the
light of overwhelming evidence of as many as
three eye-witnesses, it is proved beyond
reasonable doubt that the appellant was involved
in the incident and being armed with lathi gave
blows with the lathi causing injuries to the
deceased.
27) In the light of foregoing discussion, the
Courts below were justified in holding that the
prosecution was able to prove the case beyond
reasonable doubt against the appellant.
28) Since the State has not come up in appeal
against the sentence awarded to the appellant
and nor the appellant has challenged the award
of sentence to him, we need not examine the
adequacy or inadequacy of the sentence awarded
to the appellant.
29) In view of foregoing discussion, we find no
merit in this appeal, which fails and is
accordingly dismissed.
30) As a result, the bail granted to the appellant
by this Court by order dated 15.05.2008 is
cancelled and the appellant is directed to
surrender before the Trial Court so as to enable
him to undergo remaining period of sentence out
of the total sentence awarded by the Courts
below.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[ASHOK BHUSHAN]
New Delhi,
June 29, 2016
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