STATE OF HARYANAversusHUSSAIN

                        [2016) 3 S.C.R. 181



                      STATE OF HARYANA                                 A
                                v.
                            HUSSAIN
                (Criminal Appeal No. 1131 of2007)
                          JUNE 29, 2016                                B
              [ABHAY MANOHAR SAPRE AND
                  ASHOK BHUSHAN, JJ.]
     Penal Code, 1860 - ss. 380, 457 and 460 - Theft and house
breaking by night - Prosecutio1i case that assailants committed
house breaking by night and theft in the dwelling house, resulting
                                                                       c
in death of complainant's husband and injuries to the complainant
- Conviction of respondents for commission of offence u/ss. 380,
457 and 460 and sentenced accordingly __:.However, acquittal by
High Court - On appeal, held: View taken by the High Court there
were infirmities in the prosecution case which are fatal is based on   D
appreciation of evidence and was taken within its jurisdiction -
High Court gave cogent reasons in support of its view - There is no
infirmity or perversity in the reasoning of High Court - High Court
also held that the accused have undergone four years' jail sentence
partly as under trial and remaining after conviction by the trial
                                                                       E
court - Thus, the order passed by the High Court does noi call for
interference - No need to undertake the exercise of appreciating
the whole evidence in the instant appeal.
     Appeal -Appeal against acquittal - Re-appreciation of evidence
by Supreme Court - Held: When the view taken by the High Court
                                                                       F
while reversing the judgment of the trial court appears _to be just
and reasonable which is also supported by cogent. reasoning then
re-appreciation of evidence not required - It is _only when the High
Court fails to record any reason or fails to appreciate the evidence
or records any material finding, wholly perverse _or against any
provision of law.                                                      G
     Dismissing the appeal, the Court
     HELD: 1.1 It is a settled principle of law that if the view
taken by the High Court while reversing the judgment of the
trial court appears to be just and reasonable which is also
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                               181
182            SUPREME COURT REPORTS                      (2016) 3 S.C.R.


A     supported by cogent reasoning then this Court would not re-
      appreciate the evidence again especially when the appeal arises
      out of the order of acquittal. It is only when the High Court while
      reversing the judgment of the trial court fails to record any reason
      or fails to appreciate the evidence or when the High Court records
      any material finding which is wholly perverse or against any
B
      provision of law, this Court may consider it proper to examine
      the issues arising in the case and in appropriate case interfere in
      such finding. Such is not the case here. [Paras 17, 18] [186-C-E]
           1.2 The High Court on appreciation of evidence acquitted
      respondent No. 2 of all the charges holding that fatal blow to
c     deceased was not attributable to respondent No. 2 but it was
      attributable to another accused who was a declared proclaimed
      offender; that the recovery of the stolen articles made at the
      instance of the accused persons was unbelievable because it was
      made from the open place which was accessible to all and no
D     independent witnesses were examined to prove the factum of
      recovery; that Lambardar and Chowkidar of the concerned Gram
      Panchayat were available yet they did not join at the time of
      recovery and no explanation was offered by the prosecution as to
      why they could not join; the evidence adduced by the prosecution
      was not sufficient to prove that the stolen property belonged to
E     the complainant; and that since the accused in the meantime have
      undergone four years' jail sentence partly as under trial and
      remaining after conviction by the trial court, they are entitled for
      acquittal of the charges in the light of the infirmities in the case
      of prosecution which are fatal. [Para 14] (185-E-G]
 F         1.3 The view taken by the High Court is based on
      appreciation of evidence and the same was taken within its
      jurisdiction. The High Court has given its reasoning as to why it
      has reversed the finding of the Trial Court. It is one of the
      possible views, which the High Court is capable to take on
      appreciation of evidence and it has so taken. There is no infirmity
G
      or perversity in the reasoning of the High Court, which may
      persuade this Court to interfere in the impugned order. In these
      circumstances, there is no need to undertake the exercise of
      appreciating the whole evidence in this appeal. Further, the State
      was not able to point out any legal or jurisdictional error or/and
H     extreme perversity in the reasoning of the High Court, which
                 STATE OF HARYANA v. HUSSAIN                                183


may persuade this Court to probe into evidence de novo. [Paras              A
16, 19, 20] (186-B, F-G] .
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1131 of2007.
     From the Judgment and Order dated 28.09.2004 in Criminal Appeal
No. 414 SB of 1991 passed by the High Court of Punjab & Haryana at           B
Chandigarh.
     Keshav Kumar, Kamal Mohan Gupta, Ad vs. for the Appellant.
     The Judgment of the Court was delivered by
       ABHAY MANOHAR SAPRE, J. I. This appeal is filed by the               C
State against the final judgment and order dated 28.09.2004 passed by
the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No. 414 (SB) of 1991 whereby the Single Judge of the High Court allowed
the appeal filed by the respondent herein and set aside the judgment and
order dated 03 .08.1991 of the Trial Court convicting the respondent for    0
commission of offences under Sections 380, 457 and 460 of the Indian
Penal Code, I 860 (hereinafter referred to as "the !PC") and sentenced
him to undergo rigorous imprisonment for four years and a fine ofRs.1000/
- for commission of offence under Section 380 !PC, rigorous imprisonment
for five years and a fine ofRs. l 000/- for commission of offence under
Section 457 JPC and rigorous imprisonment for a period of ten years          E
and a fine of Rs. I 000/- for commission of offence under Section 460
!PC with default clauses. All the sentences were to run concurrently.
     2. Briefly stated, the prosecution case is that on 26.06.1987, F.l.R.
No. 79 was recorded at Police Station Mullana on the basis of the
statement made by Geeta Devi (the complainant) stating that during the · F
intervening night of25.06. l 987 and 26.06. I 987 while she along with her
family members were sleeping in the courtyard of their house at village
Samalkha, Ambala at around I .30-2.00 a.m., her mother got up to answer
the call of the nature. At that time, her father also got up. The electricity
bulb was on at that time. When her mother went outside to switch off
                                                                              G
the bulb of the courtyard, she found the gate of the house opened. In the
meantime, two persons wearing green colour jackets and blue colour
underwears carrying sticks in their hands came out from the house.
One of them gave stick blow on the head of her father. When her mother
tried to save her father, she was also attacked by the other person.
Besides these two pe~sons, two other persons were standing outside the        H
184            SUPREME COURT REPORTS                           [2016] 3 S.C.R.


A     boundary wall on western side. On alarm being raised by her, two
      assailants, who had caused injuries, jumped outside the boundary wall
      and went outside.
           3. On hearing noise, some people gathered at the spot and the
      assailants were chased, however, they succeeded to run away. The
B     Complainant also mentioned their identity by giving particulars of those
      assailants to the police. Her father, who had become unconscious, was
      taken to the Civil Hospital, Ambala where he succumbed to his injuries
      on 26.07 .1987. She also stated that when they went inside the house,
      they found household articles scattered and on checking two gold rings
      were missing.
c
           4. After completion of the investigation, three accused persons,
      namely, Niyamat, Hussain and Rashid were charged under Sections 380,
      457 and 460 IPC. The police arrested all the accused. It may be
      mentioned that Rashid had absconded from the Court and later on
      declared proclaimed offender and thereafter, proceedings under Sections
D     82 and 83 were initiated against him.
            5. After completion of the trial, the Additional Sessions Judge,
      Ambala held both the accused guilty of offences punishable under Sections
      380, 457 and 460 IPC and sentenced them to undergo rigorous
      imprisonment for four years and a fine of Rs. I 000/- for commission of
E     offence under Section 380 IPC, rigorous imprisonment of five years and
      a fine of Rs. I 000/- for commission of offence under Section 457 IPC
      and rigorous imprisonment for a period often years and a fine of Rs. I 000/
      -for commission of offence under Section 460 IPC with default clauses.
      All the sentences were to run concurrently.
 F         6. Challenging the orderandjudgment of the trial Court, the accused
      persons filed an appeal being Criminal Appeal No. 414(SB) of 1991
      before the High Court.
           7. By impugned judgment dated 28.09.2004, the High Court allowed
      the appeal of the accused, acquitted them of the charges and set aside
G     the order and judgment of the Trial Court.
          8. Aggrieved by the said judgment, the State has filed this appeal
      by way of special leave before this Court.
             9. It is stated that respondent No. I has expired during the pendency
      of th is appeal.
H
                 STATE OF HARYANA v. HUSSAIN·                                    185
                  [ABHAY MANOHAR SAPRE,J.]

     10. Heard Mr. Keshav Kumar, learned counsel for the appellant               A
(State) and also perused the written submissions filed by him after getting
pennission from this Court. None appeared for the respondent though
served.
      11 . Having heard the learned counsel for the appellant at length
and also on perusal of the written submissions and the record of the              B
case, we find no merit in this appeal.
     12. At the outset, it may be mentioned that out of two accused
(respondents) one accused - Niyamat s/o Deena (respondent No. 1)
expired during the pendency of this appeal. The appeal as against
respondent No. 1 Niyamat is accordingly dismissed as having been                  c
abated. The appeal, however, survives only against respondent No. 2 -
Husain.
      13. The question that arises for consideration in .the appeal is whether
the High Court was justified in allowing the respondents' appeal and
acquitting them by reversing the judgment of Trial Court which had                D
convicted them for commission of the offences mentioned above.
      14. Insofar as respondent No. 2-Hussian is concerned, the High
Court on appreciation of evidence acquitted him of all the charges. It
was held that firstly fatal blow to deceased was not attributab.le to Husain
(respondent No. 2) but it was attributable to another accused-Rashid              E
who was a declared proclaimed offender; Secondly, it was held that the
recovery of the stolen articles made at the instance of the accused persons
was unbelievable because it was made from the open place which was
accessible to all and no independent witnesses were examined to prove
the factum of recovery; Thirdly, it was held that Lambardar and Chowkidar
of the concerned Gram Panchayat were availab1e yet they did not join at           F
the time of recovery and no explanation was offered by the prosecution
as to why they could not join; Fourthly, it was held that the evidence
adduced by the prosecution was not sufficient to prove that the stolen
property belonged to the complainant; and lastly, it was held that since
the accused in the meantime have undergone four years' jail sentence              G
partly as under trial and remaining after conviction by the trial Court,
they are entitled for acquittal of the charges in the light of the
 aforementioned infirmities in the case of prosecution which are fatal.
     15. As mentioned above, this is a case where the Trial Court convicted
the accused-respondents of the offences alleged against them whereas
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186               SUPREME COURT REPORTS                          [2016] 3 S.C.R.


A     the High Court on appreciation of evidence finding fault in the manner
      of appreciation done by the Trial Court reversed the judgment of the
      Trial Court and acquitted the respondents giving rise to filing of this
      appeal by the State.
            16. In our considered opinion, the view taken by the High Court is
B     based on appreciation of evidence and the same was taken within its
      jurisdiction. The High Court has given its reasoning as to why it has
      reversed the finding of the Trial Court. It is one of the possible views,
      which the High Court is capable to take on appreciation of evidence and
      it has so taken.

c          17. It is a settled principle of law that ifthe view taken by the High
      Court while reversing the judgment of the Trial Court appears to be just
      and reasonable which is also supported by cogent reasoning then this
      Court would not re-appreciate the evidence again especially when the
      appeal arises out of the order of acquittal.

D           18. It is only when the High Court while reversing the judgment of
      the Trial Court fails to record any reason or fails to appreciate the evidence
      or when the High Court records any material finding which is wholly
      perverse or against any provision oflaw, this Court may consider it proper
      to examine the issues arising in the case and in appropriate case interfere
      in such finding. Such is not the case here.
E
             19. In our view, the High Court has given cogent reasons in support
      of its view as mentioned in para 14 and we have not been able to notice
      any infirmity or perversity in the reasoning of the High Court, which
      may persuade us to interfere in the impugned order. In these
      circumstances, there is no need to undertake the exercise of appreciating
F     the whole evidence in this appeal.
           20. All the submissions urged by the learned counsel for the appellant
      (State) are based on facts and involved appreciation of evidence. He
      was not able to point out any legal or jurisdictional error or/and extreme
      perversity in the reasoning of the High Court, which may persuade us to
G     probe into evidence de nova. We thus decline to accept the submissions
      and also decline to re-appreciate the evidence.
          21. In the light of foregoing discussion, there is no merit in the
      appeal. The appeal thus fails and is accordingly dismissed.
      NidhiJain                                                    Appeal dismissed.
H