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 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.86 OF 2013

Jagtar Singh            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 by the accused against

the  final  judgment  and order  dated 22.12.2009

passed by the High Court of Punjab and Haryana

at Chandigarh in Criminal Appeal No. 910-SB of

1998  which  arose  from the  order  of  conviction

and sentence dated 06.10.1998 and 07.10.1998

respectively passed by the Sessions Judge, Karnal

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in Sessions Case No. 37 of 1996/Session Trial No.

9 of 1997 convicting the accused persons under

Section 304 Part II  read with Section 34 of  the

Indian Penal Code, 1860 (hereinafter referred to

as  “IPC”)  and  sentencing  them  to  undergo

imprisonment for five years and to pay a fine of

Rs.1000/-  each.   By  impugned  judgment,  the

High Court dismissed the appeal in respect of the

present  appellant–accused  by  upholding  his

conviction and sentence and allowed the appeal

in respect of the co-accused by acquitting him of

the charge.

2. Facts of  the case need mention in brief  to

appreciate the issue involved in this appeal.  

3. Harwant Singh/Harbans Singh, (PW-3)-first

informant and the accused persons are related to

each other.  Kapoor Singh (since deceased), father

of PW-3 was having three brothers, namely, Amar

Singh, Gurnam Singh and Surinder Singh.   The

accused persons–Ajaib Singh and Jagtar Singh -

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the appellant herein are sons of Gurnam Singh.

Amar  Singh  and  Gurnam  Singh  have  expired.

The  family  of  these  persons  owned  extensive

agricultural  land.  The forefathers  of  the  parties

had,  therefore,  partitioned the agricultural  land

verbally  amongst  the  family  members  and

accordingly  all  sharers  were  cultivating  their

respective share.   

4. In the year 1991, the appellant-accused and

his brother raised a grievance to PW-3 that the

land which was allotted to them was not of good

quality.  PW-3,  acceded  to  their  request  and

exchanged  his  land  with  the  accused  persons.

The  parties  accordingly  executed  the  exchange

deed on a written document before the Panchayat

in  relation  to  exchange  of  lands.  However,  the

girdawari  in  respect  of  the  exchanged  land

remained  unaltered  and  both  the  parties

continued to cultivate their exchanged land. PW-3

then made improvements in the land which was

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in  his  possession  by  investing  his  money  and

labour.   On  finding  that  the  land  had  been

improved by PW-3, the appellant and his brother

raised a  demand to  reverse  the  exchange.   On

noticing that this might lead to a dispute, PW-3

applied for correction of the girdawari entries in

revenue  records.   The  Tehsildar,  Nilokheri  on

31.07.1996, visited the spot to enable him to pass

appropriate  orders  on  adjudication  of  the

application.

5.  On  20.09.1996,  when  PW-3  went  to  the

Court  to  attend  the  proceedings,  his  uncle

Surinder Singh and Gurmeet Singh, son of Amar

Singh  also  accompanied  him.   The  Tehsildar

passed the  order  in  favour  of  PW-3.   At  about

5.15  p.m.,  when  they  were  coming  out  of  the

office  of  the  Tehsildar,  the  appellant  and  his

brother came there and caught hold of PW-3 and

said  that  the  verdict  of  the  revenue  officer  is

wrong and, therefore, they would not allow him to

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enter the land in question.  When Surinder Singh

tried  to  intervene,  Jagtar  Singh,  the

appellant-accused  herein  caught  hold  of  the

beard of Surinder Singh and pulled him down on

the ground and hit him on his head 2-3 times by

hand.  Due  to  injuries  received,  Surinder  Singh

became  unconscious.   PW-3  and  his

cousin-Gurmeet Singh then tried to catch hold of

the  accused  persons  but  they  managed  to  run

away  from  the  spot.  Both  of  them  then  took

Surinder  Singh  to  the  nearest  hospital  at

Nilokheri  but  in  midway,  he  died.   Thereafter,

PW-3  lodged  an  FIR  bearing  No.404  dated

20.09.1996 at  P.S.  Butana,  Dist.  Karnal  under

Section 302/341/34 IPC of the incident.

6.  After investigation,  on 07.10.1996, charge

sheet  against  the  accused  persons,  namely,

Jagtar Singh-appellant (accused) herein and Ajaib

Singh, was filed under Section 302/341/34 IPC.   

7. By  order  dated  16.11.1996,  the  Judicial

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Magistrate-1st Class, Karnal  committed the case

for trial to the Sessions Judge, Karnal which was

numbered  as  Session  Case  No.  37  of  1996

(Session  Trial  No.9  of  1997).   The  prosecution

examined  six  witnesses  to  prove  their  case

whereas defence examined one witness and filed

certain documents.

8. By order dated 06.10.1998 in Sessions Case

No. 37 of 1996 and Sessions Trial No. 9 of 1997

convicted  both  the  accused  under  Section  304

Part-II read with Section 34 of IPC and vide order

dated  07.10.1998  sentenced  them  to  undergo

imprisonment for five years and to pay a fine of

Rs.1000/- each, in default of payment of fine to

further  undergo  imprisonment  for  six  months

under Section 304 Part II read with Section 34 of

IPC.

9. Aggrieved  by  the  said  order,  the  accused

persons filed appeal bearing Appeal No. 910-SB of

1998 before the High Court.  The High Court, by

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judgment dated 22.12.2009 dismissed the appeal

of  Jagtar  Singh-the  appellant  (accused)  herein

and  in  consequence  upheld  his  conviction

whereas while allowing the appeal filed by Ajaib

Singh,  co-accused,  set  side  his  conviction  and

acquitted him of the charges.

10. Feeling  aggrieved,  Jagtar  Singh  (accused)

has filed this appeal by way of special leave.

11. Heard Mr. Akshat Goel, learned counsel for

the  appellant-accused  and  Dr.  Monika  Gusain,

learned counsel for the State.

12. Challenging  the  conviction  and  sentence,

learned  counsel  for  the  appellant-accused  has

submitted that:

(i) there  was  neither  any  motive  on  the

part of accused to commit the offence

in  question  and  nor  there  was  any

incident of any type in the past during

the course of proceedings.

(ii) in any case, since there was only one

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simple injury found on the body of the

deceased and no weapon was used to

inflict  such  injury,  the  courts  below

erred in convicting the appellant for an

offences punishable under Section 304

Part II of IPC.  

(iii) even  if  the  case  against  the

appellant-accused is held proved yet at

best  it  is  punishable  under  Section

323/325  of IPC.   

(iv) the statement of  the eyewitnesses are

not  trustworthy  and hence  the  Court

below erred in placing reliance on their

testimony.

(v)  In any event,  the High Court having

rightly  acquitted  the  co-accused,  the

same  benefit  should  have  been

extended to  the appellant  and he  too

should  have  been  acquitted  on  the

same reasoning

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(vi)  and  lastly  since  the  appellant  has

already  undergone  sentence  for  a

period around 3 years or so out of total

sentence  awarded  to  him  and  hence

the  appellant  be  now  left  with  the

sentence  already  undergone  by

appropriately reducing the quantum of

sentence.

13. In  contra,  learned  counsel  for  the

respondent-State contended that no case is made

out  for  any  interference  in  the  concurrent

conviction recorded by the two Courts below.  He

urged  that  none  of  the  submissions  of  the

appellant-accused has any substance.

14. Having heard learned counsel for the parties

and on perusal of the record of the case, we find

no  merit  in  any  of  the  submissions  of  the

appellant-accused.

15. The  High  Court  dealt  with  the  case  of

appellant herein for holding him guilty as under:

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“The same is, however, not true in case of appellant  Jagtar  Singh.   There  is  clear, clinching  and  unambiguous  evidence  on the  record,  in  the  statements  of PW-3-Harbans  Singh  and  PW-4  Gurmeet Singh  to  the  effect  that  it  was  he  who caught hold of Surinder Singh, deceased by latter’s  beard  and  hair,  felled  him  upon ground  and  hit  his  head  twice  or  thrice against ground.  It was on account of that hit  that  Surinder  Singh  became unconscious  on  the  spot.   Though appellant  Jagtar  Singh  did  make  an attempt,  abortive  though,  to  raise  above indicated  plea  (in  the  statement  under Section 313 Cr.P.C.) but that plea does not stand proved on record.  If  there was an iota of truth in the above noticed plea of appellant Jagtar Singh (to the effect that matter  was  under  discussion  in  the presence  of  certain  common  relations), there is no reason why he could not have named them or examined at least one or two  out  of  them  at  the  trial.   Their testimony could be supportive of the plea raised  by  Jagtar  Singh  appellant  at  the trial.”

16. We have also on our part perused the ocular

evidence and having so perused are inclined to

concur with the aforementioned view of the High

Court calling no interference.

17. The  evidence,  in  our  opinion,  does  prove

that  it  was  the  appellant  who  took  the  lead,

caught hold of deceased by his hand, pulled him

down to the ground and hit him on his head. The

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injury  in  the  head  resulted  the  deceased  first

becoming unconscious and later succumbed to it.

The ocular evidence on this  issue was properly

appreciated by the trial Court and the High Court

for holding the appellant guilty for committing the

offence in question and hence it deserves to be

upheld.  

18. We have not been able to notice any kind of

inconsistency  or  exaggeration  in  the  evidence

adduced  by  the  prosecution  on  this  material

issue  so  as  to  disbelieve  the  evidence  of

eyewitnesses account and hence we concur with

the finding of the High Court quoted above and

reject the submission of the learned counsel for

the appellant.

19. Now so far as the issue relating to existence

of motive is concerned, we consider it apposite to

reproduce the finding of the High Court on this

issue.

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“There also, Jagtar Singh appellant is not on  firmer  footing.   There  is  plethora  of evidence available on record to prove that the first informant had filed an application for correction of Girdawari entries and the adjudication  announced  on  the  relevant date by the revenue officer was favourable to him.  There is also material available on record that first  informant had improved the  land  which  he  exchanged  with  the appellant to redress the grievance of  the latter that the quality of  the land which fell  to  their  share  in  a  partition  was inferior.  It was after the further exchange, as between the appellants on the one hand and  PW-3  Harbans  Singh  on  the  other hand,  that  the  latter  had  improved  the quality of that land.  It was obvious that the  appellants  entertained  a  feeling  of envy towards the first informant and they had an eye upon the improved land under the  cultivation  of  first  informant.   The favourable announcement of  the Girdwari correction  provided  the  proverbial combustible  material  to  the  appellants who have been proved on record to have announced thereafter that announcement of  the  verdict  of  the  revenue  officer notwithstanding, they would not allow the first informant to enter upon the land qua which Khasra girdwaries entries had been ordered to be corrected.  It cannot, thus be said  with  any  justification  that  the appellant  had  no  motive  to  commit  the impugned crime.”

20. We have on our part perused the evidence

on this issue and find no case to differ with the

finding of the two courts below. Learned counsel

for the appellant was also not able to show as to

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why the aforementioned finding of the High Court

is rendered bad in law and legally unsustainable.

21. In  our  considered  view,  there  is  enough

evidence both ocular and documentary to prove

that the motive did exist prior to commission of

the  crime  in  question.  Firstly,  it  was  not  in

dispute  that  the  parties  were  related  to  each

other;  secondly,  everyone  had  a  share  in  the

lands which belong to their  forefathers;  thirdly,

proceedings for mutation were going in revenue

courts in relation to the lands belonging to them;

fourthly,  an  order  of  mutation  was  passed  by

Tehsildar in PW-3’s favour which the accused did

not  like  being  adverse  to  them  resulting  in

developing  some  grudge  against  PW-3  and  his

family members.  

22. In the light  of  these facts,  which are duly

proved by the prosecution with the aid of  their

eyewitnesses,  we  find  no  good  ground  to  differ

with  the  finding  of  the  High  Court  and

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accordingly  hold  that  there  was  a  motive  to

commit the offence. We accordingly hold so.

23. We are not impressed by the submission of

the  learned  counsel  for  the  appellant  when  he

urged that since the co-accused was acquitted of

the charges, hence the benefit of the same be also

extended to the appellant.  

24. As held above, the evidence on record in no

uncertain terms proves that it was the appellant

who was the aggressor and hit the deceased. This

evidence was rightly made basis by the two courts

to  hold  the  appellant  guilty  for  committing  the

offence  in  question.  When the  evidence  directly

attributes the appellant for commission of the act

then we fail to appreciate as to how and on what

basis we can ignore this material  evidence duly

proved  by  the  eyewitnesses.  Such  was  not  the

case  so  far  as  co-accused  is  concerned.  The

prosecution witnesses too did not speak against

the  co-accused  and  hence  he  was  given  the

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benefit of doubt. It is pertinent to mention that

the  State  did  not  file  any  appeal  against  his

acquittal  and hence  that  part  of  the  order  has

attained finality.  

25. Now coming to the issue of conviction and

sentence  awarded  under  Section 304 Part  II  of

IPC  to  the  appellant,  though  arguments  were

advanced by the learned counsel for the appellant

for its conversion under Section 323/325 of IPC

or  in  the  alternative  to  reduce the  quantum of

sentence  to  the  extent  of  appellant  already

undergone i.e. three years, we are not inclined to

accept the submission of learned counsel even on

this issue.  

26. In our considered opinion, having regard to

the nature of injury caused by the appellant to

the  deceased  and  the  manner  in  which  it  was

caused  and  taking  into  account  the  cause  of

death - shock and hemorrhage, the Courts below

were justified in bringing the case under Section

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304 part  II  instead of  bringing the  same either

under Section 302 or/and Section 304 Part I. It is

apart from the fact that the State has not filed

any appeal  against the impugned order seeking

conviction of the appellant under Section 302 or

under Section 304 Part I or even for enhancement

of  punishment  awarded  to  the  appellant  under

Section 304 Part II.

27. In any event, we find that punishment of five

years  appears  to  be  just  and proper.   It  could

have  been  even  more  because  eventually  the

incident resulted in death of a person though the

appellant  did  not  intend  to  cause  death  of

deceased.  In the absence of any cross appeal by

the State on the issue of quantum of sentence, we

do not therefore consider it to be proper to go into

the  question  of  adequacy  of  sentence  in  this

appeal filed by the accused.

28. In the light of foregoing discussion, we find

no merit in this appeal which thus fails, and is

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accordingly dismissed. As a result, the conviction

and  sentence  awarded  to  the  appellant  by  the

courts below is upheld.

29. The  appellant  is  accordingly  directed  to

undergo  remaining  period  of  sentence.  If  the

appellant is on bail, his bail bonds are cancelled

to  enable  him  to  surrender  and  undergo

remaining period of sentence.

30. A  copy  of  the  order  be  sent  to  concerned

court for compliance.    

…….….……............................J. [R.K. AGRAWAL]

                               …………..................................J.

[ABHAY MANOHAR SAPRE]

New Delhi; June 19, 2015.

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