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Wednesday, June 24, 2015

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.=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 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 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 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.


            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  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  -  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 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 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 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
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:
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 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
(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:
“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 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.

“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  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 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 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 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 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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