JAGDISH Vs. STATE OF HARYANA
Section 323 - Punishment for voluntarily causing hurt
Section 304 - Punishment for culpable homicide not amounting to murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 411 of 2008, Judgment Date: Jun 29, 2016
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 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