JEETU @ JITENDERA & ORS.versusSTATE OF CHHATTISGARH

                    [2012] 13 S.C.R. 161


              JEETU @ JITENDERA & ORS.                            A
                              v.
                STATE OF CHHATTISGARH
            (Criminal Appeal No. 1986 of 2012)

                   DECEMBER 04, 2012
                                                                  B
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     Appeal - Appeal against conviction - Conviction by trial
court under the provisions of /PC - In appeal, counsel for the
convicts not challenging their conviction, but only seeking       C
lenient sentence - High Court maintained the conviction and
reduced the sentence - On appeal, held: It is obligation of the
Court to decide the appeal on merits and not accept the
concession and proceed to deal with the sentence - Such
plea bargaining is impermif;sible in law and defeats the          D
fundamental purpose of the justice delivery system - Code
of Criminal Procedure, 1973 - Chapter XX/A - ss. 265A and
265L (as inserted by the Criminal Law Amendment Act, 2005)
- Plea Bargaining - Penal Code, 1860 - ss. 147 and 327I
149.                                                              E
    The appellants-accused were convicted u/ss. 147
and 327/149 IPC by the trial court and were sentenced to
three months R1 for the offence u/s. 147 and to three
years RI for the offence u/s. 327 IPC. In appeal, the
counsel for the accused did not challenge the conviction,         F
but sought for lenient sentence. High Court maintained
the conviction, but reduced the sentence from 3 years RI
to 1 year RI. Hence the present appeal.
   Allowing the appeal and remitting the matter to High           G
Court, the Court
    HELD: 1. In an appeal against conviction, the
appellate court is under duty and obligation to look into
                             161                                  H
   162     SUPREME COURT REPORTS             [2012) 13 S.C.R.


A the evidence adduced in the case and arrive at an
  independent conclusion. 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.
B 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. [Paras 16 and
c 19] [168-C-D; 171-C]
      Dagadu v. State of Maharashtra AIR 1982 SC 1218;
  Govinda Kadtuji Kadam and Ors. v. The State of Maharashtra
  AIR 1970 SC 1033: 1970 (3) SCR 525; Sita Ram and Ors.
  v. The State of Uttar Pradesh AIR 1979 SC 745: 1979 (2)
D SCR 1085; Padam Singh v. State of U.P. 2000 (1) SCJ 143
   - relied on.

       2. Sometimes the accused enters into a plea
  bargaining. The counsel for the appellants before the
E High Court did not challenge the conviction but sought
  imposition of a lenient sentence. The High Court has not
  made any effort to satisfy its conscience and accepted
  the concession given by the counsel in a routine manner.
  When a convicted person prefers an appeal, he has the
F 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
G 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 to assist the Courts in
  reaching a correct conclusion. Therefore, it is the
  obligation of th.e Court to decide the appeal on merits and
H not accept the concession and proceed to deal with the
      JEETU@ JITENDERA & ORS. v. STATE OF               163
                CHHATTISGARH
sentence, for the said mode and method defeats the             A
fundamental purpose of the justice delivery system. The
same being impermissible in law should not be talcen
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    B
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. [Paras
17, 18 and 21] [168-D; 169-F-G; 172-B-G]

     Thippaswamy v. State of Kamataka AIR 1983 SC 747; C
State of Uttar Pradesh v. Chandrika (1999) 8 SCC 638: 1999
(4) Suppl. SCR 239; Madan/al Ramchandra Daga v. State
of Maharashtra AIR 1968 SC 1267: 1968 SCR 34; Murlidhar
Meghraj Loya v. State of Maharashtra (1976) 3 SCC 684: D
1977 (1) SCR 1; Ganeshmal Jashraj v. Govt. of Gujarat
(1980) 1 SCC 363: 1980 ( 1 ) SCR 1114; Dilip S. Dahanukar
v. Kotak Mahindra Co. Ltd. And Anr. (2007) 6 SCC 528: 2007
(4) SCR 1122; Babu Rajirao Shinde v. State of Maharashtra
(1971) 3 SCC 337; Siddanna Apparao Patil v. State of
Maharashtra (1970) 1 SCC 547: 1970 (3) SCR 909 - relied E
on.
                       Case Law Reference:
      AIR 1982 SC 1218        Relied on          Para 16
                                                               F
      1970 (3) SCR 525        Relied on          Para 16
      1979 (2) SCR 1085       Relied on          Para 16
      AIR 1983 SC 747         Relied on          Para 17
      1999 (4) Suppl. SCR 239 Relied on          Para 18       G

      1968 SCR 34             Relied on          Para 18
      1977 (1) SCR 1          Relied on          Para 18
                                                               H
    164      SUPREME COURT REPORTS              [2012] 13 S.C.R.


A         1980 (1) SCR 1114       Relied on             Para 18
          2000 (1) SCJ 143        Relied on             Para 19
          2007 (4) SCR 1122       Relied on             Para 20
          (1971) 3 sec 337        Relied on             Para 20
B
          1970 (3) SCR 909        Relied on             Para 20
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1986 of 2012.
c       From the Judgment and Order dated 17.08.2012 of the
    High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.
    639 of 2009.

      C.N. Sree Kumar, Prakash Ranjan Nayak and Reshmitha
D R. Chandran for the Appellants.

          C.D. Singh and Sunny Choudhary for the Respondent.

          The Judgment of the Court was delivered by

E         DIPAK MISRA, J. 1. 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
F of the appellant for offences punishable under Sections 147 and
  327/149 of the Indian Penal Code (for short "the l.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
G offence on the first score "i.e. Section 147, l.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.l.R. lodged by the informant, Aarif Hussain, PW-10, at
H
     JEETU@ JITENDERA & ORS. v. STATE OF                    165
        CHHATTISGARH [DIPAK MISRA, J.]
11.50 P.M. on 16.4.2008 alleging that about 10.00 P.M. when         A
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            B
and 323 read with Section 34 of the 1.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 officer,   c
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 l.P.C.
before the learned trial Magistrate who committed the matter
to the court of Sessions.
                                                                    D
    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 l.P.C.

     5. The accused persons abjured their guilt and pleaded         E
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.
                                                                    F

      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 l.P.C. but found them guilty        G
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              H
    166       SUPREME COURT REPORTS                  [2012) 13 S.C.R.


A   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.
B
         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
c         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
D         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 criminal antecedents against them,
E         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
F   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
G rigorous imprisonment to one year from three years. As a
  consequence of the reduction in sentence, all the accused-
  appellants barring1 appellant No. 3 therein were sent to custody
  to suffer the rem~ining part of the sentence imposed on them.
  Being dissatisfied, the present appeal has been preferred by
H accused Nos. 1, 4 and 5.
     JEETU@ JITENDERA & ORS. v. STATE OF                       167
        CHHATTISGARH [DIPAK MISRA, J.]
      12. We have heard Mr. C.N. Sreekumar, learned counsel            A
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.
                                                                       8
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            C
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 l.P.C. and for
the said offence, the sentence of one year rigorous
imprisonment is absolutely disproportionate and excessive.
                                                                       D
     14. Mr. C.D. Singh, learned counsel for the State, per
contra, propounded that for proving an offence under Section
327 of the l.P.C., framing of charge under Section 383 of the
1.P.C is not warranted. It is urged by him that the material
brought on record clearly prove the offences to the hilt against       E
the accused-appellants and, therefore, no fault can be found
with the delineation made by the High Court.

       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       F
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.              G

     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          H
    168       SUPREME COURT REPORTS              [2012] 13 S.C.R.


A to address whether deliberation on merits was the warrant
   Qespite a concession given in that regard by the learned
   eounsel 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
B appeal. Section 384 of the Code deals with summary
  dismissal of appeal. A three Judge Bench in Dagadu v. State
  of Maharashtra 1 referred to the decisions in Govinda Kadtuji
  Kadam and others v. The State of Maharashtra 2 and Sita
  'Ram and others v. The State of Uttar Pradesh 3 and thereafter
c 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
0
  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
E 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
  Karnataka 4, the accused pleaded guilty and was eventually
  convicted by the learned Magistrate under Section 304 A of the
F 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
G one year. A three-Judge Bench of this Court took note of the

    1.   AIR 1982 SC 1218.
    2.   AIR 1979 SC 1033.
    3.   AIR 1979 SC 745.
H   4.   AIR 1983 SC 747.
      JEETU@ JITENDERA & ORS. v. STATE OF                      169
         CHHATTISGARH [DIPAK MISRA, J.]
fact that it was a case of plea bargaining and observed that          A
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:-

      "lt would be clearly violative of Article 21 of the Constitution 8
      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 C
      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
      SE1ntence. The Court of appeal or revision should, in such
      a case, set aside the conviction and sentence of the D
      accused and remand the case to the trial court so that the
      accused can, if he so wishes, defend himself against the
      charge and if he is found guilty, proper sentence can be
      passed against him."
                                                                       E
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 F
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      G
sentence. In State of Uttar Pradesh v. Chandrika 5, the High
Court in an appeal accepted the plea bargain and maintained
the conviction of the respondent under Section 304 Part 1 of
5.   (1999) s sec 638.                                                H
    170        SUPREME COURT REPORTS               [2012) 13 S.C.R.


A l.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 therein. This Court took note of
B the judgment and order of conviction and sentence passed by
  the learned sessions Judge who had convicted him under
  Section 304 Part I of l.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
c 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
0
  the criminal justice system. After referring to the decisions in
  Madan/al Ramchandra Daga v. State of Maharashtra 8,
  Murlidhar Meghraj Loya If. State of Maharashtra 7, Ganeshmal
  Jashraj v. Govt. of Gujaraf3 and Thippaswamy (supra), a two-
E Judge Bench ruled thus:-

          "lt is settled law that on the basis of plea bargaining the
          court cannot dispose of the criminal cases. The Court has
          to decide it on merits. If the accused confesses his guilt,
          an appropriate sentence is required to be imposed.
F         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
G         is not challenging the order of conviction. as then~ is
          sufficient evidence to connect the accused with the crime.

    6.   AIR 1968 SC 1287.
    1.   (1976) 3 sec 684.
H   8.   (1980) 1 sec 363.
      JEETU @ JITENDERA & ORS. v. STATE OF                    171
          CHHATTISGARH [DIPAK MISRA, J.]
      then also the court's conscience must be satisfied before      A
      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           B
      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    C
in an appeal against conviction, the appellate court is 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      0
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
Maharashtra 11 and Siddanna Apparao Patil v. State of
Maharashtra 12, opined thus:-
                                                                     E
      "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          F
      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                                         G

9.   2000 (1) SCJ 143.
10. c2007) a sec s2a.
11. (1971) 3 sec 337.
12. (197) 1 sec 547.                                                 H
    172       SUPREME COURT REPORTS                [2012] 13 S.C.R.


A         The right to appeal from a judgment of conviction vis-a-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
B         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
C   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
D   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 to assist the Courts in reaching a correct conclusion.
E   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
F   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
G   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
H
     JEETU @ JITENDERA & ORS. v. STATE OF                   173
         CHHATTISGARH [DIPAK MISRA, J.]
and order passed by the High Court are set aside and the           A
appeal is remitted to the High Court to be decided on merits
in accordance with law. As the appellants were 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.                 B

K.K.T.                               Appeal allowed & Matter
                                  remitted back to High Court.