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Reportable  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.                     OF     2012   (Arising out of S.L.P. (Criminal) No. 8234 of 2012

Jeetu @ Jitendera & Ors.           ... Appellants

Versus

State of Chhattisgarh                ...Respondent

J     U     D     G     M     E     N     T       

Dipak     Misra,     J.   

Leave granted.  

2. The present appeal by special leave is directed  

against the judgment of conviction and order of sentence  

passed by the High Court of Chattisgarh at Bilaspur in  

Criminal Appeal No. 639 of 2009 whereby the High Court  

affirmed the conviction of the appellant for offences

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punishable under Sections 147 and 327/149 of the Indian  

Penal Code (for short “the I.P.C.”), but reduced the sentence  

from three years rigorous imprisonment on the second score  

to one year and maintained the sentence of rigorous  

imprisonment for three months in respect of the offence on  

the first score i.e. Section 147, I.P.C.  Be it noted, both the  

sentences were directed to be concurrent.

3. The facts as has been exposited are that on the  

basis of an F.I.R. lodged by the informant, Aarif Hussain,  

PW-10, at 11.50 P.M. on 16.4.2008 alleging that about  

10.00 P.M. when he was going towards Telibandha P.S., the  

accused persons met him near Telibandha chowk and  

demanded Rs.500/- for liquor and on his refusal they took  

him towards Awanti Vihar railway crossing in an auto  

rickshaw and assaulted him, Crime Case No. 129/2008 was  

registered under Sections 327, 366 and 323 read with  

Section 34 of the I.P.C. at the concerned police station.  

After the criminal law was set in motion, said Aarif Hussain  

was medically examined by Dr. Vishwanath Ram Bhagat,  

PW-1, and as per the injury report, Exhbt. P-1, he had  

sustained four injuries on his person.  The investigating  

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officer, after completing the investigation, placed the charge  

sheet on 6.8.2008 against the accused persons for offences  

punishable under Sections 147, 327, 364-A, 323 and 34 of  

the I.P.C. before the learned trial Magistrate who committed  

the matter to the court of Sessions.  

4. The learned Additional Sessions Judge, considering  

the material on record, framed charges for offences  

punishable under Sections 148, 329/149 and 364/149 of  

the I.P.C.   

5. The accused persons abjured their guilt and pleaded  

false implication in the crime in question.   

6. The prosecution, in order to substantiate its stand,  

examined eleven witnesses and exhibited number of  

documents. The defence, in support of its plea, chose not to  

adduce any evidence.

7. The learned trial judge, on the basis of the ocular  

and documentary evidence brought on record, came to hold  

that the accused persons were not guilty of the offences  

under Sections 148, 329/149 and 364/149 of the I.P.C. but  

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found them guilty for the offences as mentioned earlier and  

sentenced them as has been stated hereinbefore.

8. Being aggrieved by the aforesaid decision of  

conviction and order of sentence, the accused-appellant  

preferred Criminal Appeal No. 639 of 2009.  Before the High  

Court, the learned counsel for the appellants did not press  

the appeal as far as the conviction aspect is concerned and  

confined the submissions as regards the imposition of  

sentence highlighting certain mitigating circumstances.

9. At this juncture, we think it seemly to reproduce  

what the learned single Judge has recorded about the  

submission of the learned counsel for the accused-

appellants: -

“Learned counsel appearing for the  appellants submits that he is not pressing  this appeal as far as it relates to conviction  part of the impugned judgment and would  confine his argument to the sentence part  thereof only.  He submits that the incident  had taken place more than four years back,  there was no premeditation and on the spur  of moment the incident had taken place,  appellant Nos. 1, 4 & 5 have already  remained in jail for 23 days and appellant  No. 2 for 166 days whereas appellant No. 3  is in jail for last about 18 months, all the  appellants are young boys having no  

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criminal antecedents against them,  therefore, the sentence imposed on them  may be reduced to the period already  undergone by them.”

10. Be it noted, the learned counsel for the State resisted  

the aforesaid submission and contended that regard being  

had to the gravity of the offence, no leniency should be  

shown to the appellants.           

11. The learned single Judge did not address himself with  

regard to the legal sustainability of the conviction.  He took  

note of the submission advanced at the bar and reduced the  

rigorous imprisonment to one year from three years.  As a  

consequence of the reduction in sentence, all the accused-

appellants barring appellant No. 3 therein were sent to  

custody to suffer the remaining part of the sentence  

imposed on them.   Being dissatisfied, the present appeal  

has been preferred by accused Nos. 1, 4 and 5.

12.   We have heard Mr. C.N. Sreekumar, learned counsel  

for the appellant, and Mr. C.D. Singh, learned counsel for  

the respondent State.

13. Questioning the legal substantiality of the decision  

passed by the learned single Judge, it is contended by Mr.  

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Sreekumar that the conviction under Section 327 is not  

sustainable inasmuch as no charge was framed under  

Section 383 of the IPC.   It is his further submission that  

the prosecution has miserably failed to establish its case  

beyond reasonable doubt; and had the evidence been  

appreciated in an apposite manner, the conviction could not  

have been sustained.  Alternatively, it is argued that in any  

case, there could have been a conviction only under Section  

323 of the I.P.C. and for the said offence, the sentence of  

one year rigorous imprisonment is absolutely  

disproportionate and excessive.

14. Mr. C.D. Singh, learned counsel for the State, per  

contra, propounded that for proving an offence under  

Section 327 of the I.P.C., framing of charge under Section  

383 of the I.P.C is not warranted.  It is urged by him that  

the material brought on record clearly prove the offences to  

the hilt against the accused-appellants and, therefore, no  

fault can be found with the delineation made by the High  

Court.  

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15. The hub of the matter, as we perceive, really pertains  

to the justifiability and legal propriety of the manner in  

which the High Court has dealt with the appeal.   It is clear  

as day that it has recorded the proponement of the learned  

counsel for the appellants relating to non-assail of the  

conviction, extenuating factors for reduction of sentence  

and proceeded to address itself with regard to the quantum  

of sentence. It has not recorded its opinion as regards the  

correctness of the conviction.  

16. The learned counsel for the appellants has made an  

effort to question the pregnability of the conviction recorded  

by the learned trial Judge on many a score. But, a  

significant one, the conclusion is sans delineation on  

merits. We are required to address whether deliberation on  

merits was the warrant despite a concession given in that  

regard by the learned counsel for the appellants.   Section  

374 of the Code of Criminal Procedure, 1973 (for short “the  

Code”) deals with appeals from conviction.   Section 382 of  

the Code deals with petition of appeal.  Section 384 of the  

Code deals with summary dismissal of appeal.  A three  

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Judge Bench in Dagadu v. State of Maharashtra1  

referred to the decisions in Govinda Kadtuji Kadam and  

others v. The State of Maharashtra2  and Sita Ram and  

others v. The State of Uttar Pradesh3 and thereafter  

opined that even if the High Court chooses to dismiss the  

appeal summarily, some brief reasons should be given so as  

to enable this Court to judge whether or not the case  

requires any further examination.  If no reasons are given,  

the task of this Court becomes onerous inasmuch as this  

Court would be required to perform the function of the High  

Court itself by reappraising the entire evidence resulting in  

serious harassment and expense to the accused.  

17. It is apt to note that sometimes the accused enters  

into a plea bargaining.  Prior to coming into force of Chapter  

21 A dealing with plea bargaining under  Sections 265 A  

and 265 L by Act 2 of 2006, the concept of  plea bargaining  

was not envisaged under the Code.   In Thippaswamy v.  

State of Karnataka4, the accused pleaded guilty and was  

eventually convicted by the learned Magistrate under  

1 AIR 1982 SC 1218 2 AIR 1970 SC 1033 3 AIR 1979 SC 745 4 AIR 1983 SC 747

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Section 304 A of the IPC and was sentenced to pay a sum of  

Rs.1000/- towards fine.  He did not avail the opportunity to  

defend himself.   On an appeal preferred by the State, the  

High Court found him guilty maintaining the sentence of  

fine and additionally imposed a substantive sentence of  

rigorous imprisonment for a period of one year.   A three-

Judge Bench of this Court took note of the fact that it was a  

case of plea bargaining and observed that had the accused  

known that he would not be let off with a mere sentence of  

fine but would be imprisoned, he would not have pleaded  

guilty.  In that context, this Court observed as follows:-  

“It would be clearly violative of Article 21 of the  Constitution to induce or lead an accused to  plead guilty under a promise or assurance that  he would be let off lightly and then in appeal  or revision, to enhance the sentence. Of course  when we say this, we do not for a moment  wish to suggest that the Court of appeal or  revision should not interfere where a  disproportionately low sentence is imposed on  the accused as a result of plea-bargaining. But  in such a case, it would not be reasonable, fair  just to act on the plea of guilty for the purpose  of enhancing the sentence. The Court of appeal  or revision should, in such a case, set aside  the conviction and sentence of the accused  and remand the case to the trial court so that  the accused can, if he so wishes, defend  

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himself against the charge and if he is found  guilty, proper sentence can be passed against  him.”

After so holding, the conviction was set aside and the  

matter was sent back to the trial Magistrate with a direction  

that the accused shall be afforded a proper and adequate  

opportunity to defend himself.  It was further ruled that if  

he was guilty as a result of the trial, the judicial Magistrate  

may impose proper sentence upon him and, on the other  

hand, if he is not found guilty, he may be acquitted.   

18. As is evincible from the impugned judgment, the  

learned counsel for the appellants before the High Court did  

not challenge the conviction but sought imposition of a  

lenient sentence.  In State of Uttar Pradesh v.  

Chandrika5, the High Court in an appeal accepted the plea  

bargain and maintained the conviction of the respondent  

under Section 304 Part 1 of I.P.C but   altered the sentence  

to the period of imprisonment already undergone and to pay  

a fine of Rs. 5000/-, in default of payment, to suffer R.I. for  

six months.  Be it noted, the High Court had not stated the  

actual period of imprisonment undergone by the respondent  

5 (1999) 8 SCC 638

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therein.  This Court took note of the judgment and order of  

conviction and sentence passed by the learned sessions  

Judge who had convicted him under Section 304 Part I of  

I.P.C and sentenced him to undergo eight years’  R.I.    At  

the time of hearing of appeal, the finding of conviction was  

not challenged with a view to bargain on the question of  

sentence.  The learned single Judge accepted the bargain  

and partly allowed the appeal by altering the sentence.  The  

legal acceptability of the said judgment was called in  

question by the State before this Court.    Taking note of the  

fact situation, this Court observed that the concept of plea  

bargaining is not recognized and is against public policy  

under the criminal justice system.   After referring to the  

decisions in Madanlal Ramchandra Daga v. State of  

Maharashtra6, Murlidhar Meghraj Loya v. State of  

Maharashtra7, Ganeshmal Jashraj v. Govt. of Gujarat8  

and Thippaswamy (supra), a two-Judge Bench ruled  

thus:-

“It is settled law that on the basis of plea  

bargaining the court cannot dispose of the  

6 AIR 1968 SC 1267 7 (1976) 3 SCC 684  8 (1980) 1 SCC 363

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criminal cases. The Court has to decide it on  

merits. If the accused confesses his guilt, an  

appropriate sentence is required to be  

imposed. Further,     the     approach     of     the     court     in    

appeal     or     revisions     should     be     to     find     out    

whether     the     accused     is     guilty     or     not     on     the    

basis     of     the     evidence     on     record.     If     he     is     guilty,    

an     appropriate     sentence     is     required     to     be    

imposed     or     maintained.     If     the     appellant     or     his    

counsel     submits     that     he     is     not     challenging     the    

order     of     conviction,     as     there     is     sufficient    

evidence     to     connect     the     accused     with     the    

crime,     then     also     the     court's     conscience     must    

be     satisfied     before     passing     the     final     order     that    

the     said     concession     is     based     on     the     evidence    

on     record  . In such cases, sentence  

commensurating with the crime committed by  

the accused is required to be imposed. Mere  

acceptance     or     admission     of     the     guilt     should    

not     be     a     ground     for     reduction     of     sentence.   Nor  

can the accused bargain with the court that as  

he is pleading guilty the sentence be reduced.”

[ Emphasis Supplied ]

19. In Padam Singh v. State of U.P.9, it has been held  

that in an appeal against conviction, the appellate court is  

9 2000 (1) SCJ 143

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under duty and obligation to look into the evidence adduced  

in the case and arrive at an independent conclusion.  

20. At this stage, we may refer with profit to a two-Judge  

Bench decision in Dilip S. Dahanukar v. Kotak  

Mahindra Co. Ltd. And Another10 wherein this Court,  

after referring to the pronouncements in Babu Rajirao  

Shinde v. State of Maharashtra11 and Siddanna  

Apparao Patil v. State of Maharashtra12, opined thus :-  

“An appeal is indisputably a statutory right  

and an offender who has been convicted is  

entitled to avail the right of appeal which is  

provided for under Section 374 of the Code.  

Right of appeal from a judgment of conviction  

affecting the liberty of a person keeping in view  

the expansive definition of Article 21 is also a  

fundamental right. Right of appeal, thus, can  

neither be interfered with or impaired, nor can  

it be subjected to any condition.

xxx xxx xxx xxx

10 (2007) 6 SCC 528 11 (1971) 3 SCC 337 12 (1970) 1 SCC 547

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The right to appeal from a judgment of  

conviction vis-à-vis the provisions of Section  

357 of the Code of Criminal Procedure and  

other provisions thereof, as mentioned  

hereinbefore, must be considered having  

regard to the fundamental right of an accused  

enshrined under Article 21 of the Constitution  

of India as also the international covenants  

operating in the field.”

21. Tested on the touchstone of the aforesaid legal  

principles, it is luminescent that the High Court has not  

made any effort to satisfy its conscience and accepted the  

concession given by the counsel in a routine manner.  At  

this juncture, we are obliged to state that when a convicted  

person prefers an appeal, he has the legitimate expectation  

to be dealt with by the Courts in accordance with law.  He  

has intrinsic faith in the criminal justice dispensation  

system and it is the sacred duty of the adjudicatory system  

to remain alive to the said faith. That apart,   he has  

embedded trust in his counsel that he shall put forth his  

case to the best of his ability assailing the conviction and to  

do full justice to the case.  That apart, a counsel is expected  

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to assist the Courts in reaching a correct conclusion.  

Therefore, it is the obligation of the Court to decide the  

appeal on merits and not accept the concession and  

proceed to deal with the sentence, for the said mode and  

method defeats the fundamental purpose of the justice  

delivery system.  We are compelled to note here that we  

have come across many cases where the High Courts, after  

recording the non-challenge to the conviction, have  

proceeded to dwell upon the proportionality of the quantum  

of sentence.  We may clearly state that the same being  

impermissible in law should not be taken resort to.  It  

should be borne in mind that a convict who has been  

imposed substantive sentence is deprived of his liberty, the  

stem of life that should not ordinarily be stenosed, and  

hence, it is the duty of the Court to see that the cause of  

justice is subserved with serenity in accordance with the  

established principles of law.  

22. Ex consequenti, the appeal is allowed and the  

judgment and order passed by the High Court are set aside  

and the appeal is remitted to the High Court to be decided  

on merits in accordance with law.  As the appellants were  

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on bail during the pendency of the appeal before the High  

Court and are presently in custody, they shall be released  

on bail on the said terms subject to the final decision in the  

appeal.  

 ……………………………….J.   [K. S. Radhakrishnan]

……………………………….J.                                                  [Dipak Misra]

New Delhi; December 04, 2012.   

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