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Saturday, July 2, 2016

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 = 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. = 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.= 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. 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.

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









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