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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)

J U D G M E N T

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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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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