Rabari Ghela Jadav Vs. The State of
Bombay  INSC 32 (26 February 1960)
26/02/1960 IMAM, SYED JAFFER IMAM, SYED
JAFFER SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.
CITATION: 1960 AIR 748 1960 SCR (3) 130
Criminal Appeal-if can be admitted and heard
on question of sentence only--Code of Criminal Procedure (V of 1898), ss. 418(1),
419, 421, 422.
The appellant was convicted under s. 304 Part
I of the Indian Penal Code and sentenced to imprisonment for life by the trial
Court. His appeal to the High Court was admitted only on the question of
sentence and at the hearing the sentence was reduced to 10 years' imprisonment.
On appeal by special leave the appellant contended that his appeal in the High
Court could not, in law, be admitted on the question of sentence only and that
he was entitled to be heard on the merits of the case also.
Held, that having regard to the provisions of
the Code of Criminal Procedure while an Appellate Court had power to dismiss an
appeal summarily if it considered that there was no sufficient ground for
interfering, it had no power to direct the appeal to be heard on the question
of sentence only.
The Appellate Court, after hearing the appeal
had the power in finally disposing of the appeal to reduce the sentence but was
not entitled to direct the appeal to be admitted only on the question of
sentence. The appellant was entitled to have his appeal heard on the merits in
the High Court.
The King Emperor v. Dahu Raut, (1935) L.R. 62
I.A. 129, followed.
Nafar Sheikh v. Emperor, (1914) I.L.R. 41
Cal. 606, Gaya Singh v. King Emperor, (1925) I.L.R. 4 Pat. 254, and Sudhir
Kumar Neogi and Another v. Emperor, A.I.R. (1942) Pat. 46, approved.
Bai Dhankor v. Emperor, (1937) I.L.R. Bom.
365, not applicable.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 14 of 1959.
Appeal by special leave from the judgment and
order dated November 19, 1957, of the Bombay High Court at Rajkot in Criminal
Appeal No. 137 of 1957, arising out of the Judgment and order dated August 31,
1957, of the Sessions Judge, Sorath Division, Junagadh, in Sessions Case No. 26
P. K. Chatterjee, for the appellant.
H. J. Umrigar and B. H. Dhebar, for the
131 1960, February, 26. The Judgment of the
Court was delivered by IMAM, J.-This appeal is by special leave. The appellant
was convicted under s. 304, Part I of the Indian Penal Code and sentenced to,
imprisonment for life. He appealed to the Bombay High Court. According to the
judgment of the High Court the appeal was admitted only on the point of
The High Court reduced the sentence from
imprisonment for life to 10 years' rigorous imprisonment.
It was submitted on behalf of the appellant
that the High Court could not, in law, admit an appeal only on the point of
sentence and the appellant was entitled to have his appeal heard on the merits
of his conviction as well. The evidence upon which the appellant was convicted
was unsatisfactory and he was entitled to be acquitted.
Shortly stated, the case of the prosecution
was that the appellant had caused the death of Zina Hira on April 6, 1957, when
the deceased was returning from an adjoining village to the village of his
residence. The appellant met him on the way and accused him of having committed
theft in the appellant's house which the deceased denied. Upon this the
appellant attacked him with a stick which had iron rings round it. A number of
blows were given by the appellant with this stick in consequence of which Zina
Hira fell down.
Although a doctor was called for from Keshod,
8 miles away, ultimately the deceased was taken to Junagadh for better medical
treatment but died on the way in the early hours of the morning of April 7.
According to the case of the appellant he was
not present at the scene of the crime and pleaded not guilty to the charge.
According to the judgment of the High Court
the appeal of the appellant before it was admitted only on the point of
sentence. It was urged that this procedure adopted by the High Court was not in
conformity with the provisions of ss. 421 and 422 of the Code of Criminal
Procedure. Reliance was placed upon the decisions of the Calcutta High Court
and Patna High Court in the cases of Nafar Sheikh v. 132 Emperor (1), Gaya
Singh v. King Emperor (2) Sudhir Kumar Neogi and Another -v. Emperor (1) and
Sheikh Rijhu and Others v. Emperor (4) and of the Privy Council in the case of
The King-Emperor v. Dahu Raut (5). Reference was also made to the decision of
the Patna High Court in the case of Kuldip Das v. King Emperor ( 6 ) and the decision
of the Bombay High Court in the case of Bai Dhankor v. Emperor(7).
In order to appreciate the submission made on
behalf of the appellant reference to certain provisions of the Code of Criminal
Procedure in Chapter XXXI concerning Appeals will be necessary. Under s. 418(1)
an appeal may lie on a matter of fact as well as a, matter of law, except where
the trial was by jury in which case the appeal shall lie on a matter of law
only. It is unnecessary to refer to sub-s. (2) of this section for the purposes
of this appeal. Under s. 419 every appeal shall be made in the form of a
petition in writing presented by the appellant or his pleader and every such
petition shall (unless the Court to which it is presented otherwise directs) be
accompanied by a copy of the judgment or order appealed against, and in cases
tried by a jury, a copy of the heads of the charge recorded under section 367.
As to what should follow on the presentation of such a petition it will be
necessary to quote the provisions of ss. 421 and 422 of the Code. Section 421
" 421 (1) On receiving the petition and
copy under section 419 or section 420, the Appellate Court shall peruse the
same, and, if it considers that there is no sufficient ground for interfering,
it may dismiss the appeal summarily:
Provided that no appeal presented under
section 419 shall be dismissed unless the appellant or his pleader has had a
reasonable opportunity of being heard in support of the same.
(2) Before dismissing an appeal under this
section, the Court may call for the record of the case, but shall not be bound
to do so." (1) (1914) I.L.R. 41 Cal. 606.
(2) (1925) I.L.R. 4 Pat. 254.
(3) A.I.R. (1942) Pat 46.
(4) A.I.R. (1931) Pat. 351 (5) (1935) L.R. 62
(6) (1932) I.L.R. 11 Pat. 697.
(7) (1937) I.L.R..CB Bom 365.
133 Section 422 reads " 422. If the
Appellate Court does not dismiss the appeal summarily, it shall cause notice to
be given to the appellant or his pleader, and to such officer as the State
Government may appoint in this behalf, of the time and place at which such
appeal will be heard, and shall, on the application of such officer, furnish
him with a copy of the grounds of appeal;
and, in cases of appeal under section 411A,
subsection (2), or section 417, the Appellate Court shall cause a like notice
to be given to the accused." It is clear from these provisions that on
receiving the petition and a copy under s. 419, the Appellate Court shall
peruse the same and if it considers that there is no sufficient ground for interfering
it will dismiss the appeal summarily, and that if the Appellate Court does not
dismiss the appeal summarily, it shall cause notice to be given to the
appellant or his pleader, and to such officer as the State Government may
appoint in this behalf, of the time and place at which such appeal will be
heard. The recording of an order that the appeal is admitted, when it is not
summarily dismissed, is not a happily chosen expression as was pointed out by
the Privy Council in the case of The King-Emperor v. Dahu Raut (1). Section 421
gives ample power to the Appellate Court to dismiss an appeal summarily if it
considers that there is no sufficient ground for interfering. On the other
hand, if it does not dismiss the appeal summarily then it is obligatory upon it
to cause notice of the appeal to be given to the appellant and to such officer
as the State Government may appoint in this behalf of the time and place at
which such appeal will be heard. These provisions do not contemplate a partial
summary dismissal of an appeal as was pointed out by the Privy Council in the
above-mentioned case where it was stated by Lord Thankerton:
" The terms of the section equally
exclude the possibility of partial summaary dismissal, e. g., in so far as the
conviction is appealed against. Failing, summary dismissal, the provisions of
ss. 422 and 423 apply and, in their Lordships' opinion, the pro(1)  L.R.
62 l.A. 129 134 visions as to notices in s. 422 and the provisions as to
sending for the record in s. 423 are clearly peremptory and there can be no
room for revision at that stage. " It was, however, submitted on behalf of
the State of Bombay that the facts in the case before the Privy Council can be
distinguished from the facts of the present case because in the case before the
Privy Council no notices were issued under s. 422 and the record was not sent
for in accordance with s. 423. In the present case notices were issued under s.
422 and the record was sent for in accordance with s. 423 of the Code.
Particular reliance was placed upon the concluding portion of the Privy Council
judgment to the following effect :" Accordingly, their Lordships will
humbly advise His Majesty that the appeals should be allowed, and that it
should be declared that, upon the true construction of the Criminal Procedure
Code, the Appellate Court is entitled to dismiss an appeal summarily in terms
of s. 421 unless the Court is satisfied that there is no sufficient ground for
interfering in accordance with the relief sought in the appeal, and that where
the appeal is not dismissed summarily, the court is bound, in order to the
disposal of the appeal, to comply with the provisions of s. 422 as to notice,
and with the provisions of s. 423 as to the sending of the record, if such
record is not already in Court.........." It seems to us, however, having
regard to the provisions of the Code, that while an Appellate Court has power
to dismiss an appeal summarily, if it considers that there is no sufficient
ground for interfering, it has no power to direct, as in the case before us,
that the appeal shall be heard only on the point of sentence. Such an order is
not an order of -summary dismissal under s. 421 and neither is it an order in
terms of s. 422 of the Code. When an appeal is filed it is an appeal against
conviction and sentence and it is not permissible for an Appellate Court to
direct that it shall be heard only on , the question of sentence. Our
interpretation of ss. 421 and 422 is in keeping with the interpretation of
these sections by the 135 Privy Council in Dahu Raut's case. The decisions of
the Calcutta High Court and the Patna High Court in (1914) I.L.R. 41 Cal. 606,
A.I.R. 1942 Pat. 46, (1925) I.L.R. 4 Pat. 254 referred to above appear to us to
be correct. In these circumstances reference need not be made to the view
expressed by the Patna High Court in (1932) I.L.R. II Pat.
697 which was a judgment before the decision
of the Privy Council in Dahu Raut's case. The decision of the Bombay High Court
in I.L.R. 1937 Bom. 365 endeavoured to find a way in which the difficulty could
be resolved where the Appellate Court was of the opinion that only the question
of sentence was involved. For the purposes of this appeal it is unnecessary for
us to say anything about this decision because what was stated there does not
arise for consideration, as, in the present case, according to the judgment of
the High Court, the appeal was admitted only on the point of sentence. It was
also urged by Mr. Umrigar that under s. 423 an Appellate Court had the power to
reduce the sentence. That is so, but that power can only be exercised after the
requirements of s. 422 have been complied with The Appellate Court after
hearing the appeal, certainly has the power in finally disposing of the appeal
to reduce the sentence but that does not entitle it to direct that an appeal is
admitted only on the question of sentence. We make it clear, however, that in
dealing with Mr. Umrigar's submission on this point we are concerned with the
powers of an Appellate Court and not with the power of a High Court in the
exercise of its revisional jurisdiction which does not arise for consideration
in this appeal. In our opinion, the form of the order admitting the appeal in
the present case was invalid and the appellant could have insisted that since
the appeal had not been summarily dismissed, the High Court should have heard
his appeal on the merits as well.
As the appeal was not heard on the merits, we
considered whether the appeal should be sent back to the High Court for
rehearing on the merits. We have, however, thought it fit to hear the appeal on
the merits for ourselves.
136 We, accordingly, heard the learned
Advocate for the appellant on the evidence. It is clear to us from a perusal of
the evidence that the case has been amply proved against the appellant. There
was an eye-witness who saw the appellant assaulting the deceased with a stick.
He was in some way related to the deceased, which he attempted to deny,
otherwise there is nothing in his evidence to induce a court to distrust his
testimony. This eye-witness, Bava Tapu, immediately after the assault, went to
the Police Patel of Simroli, one Keshav, and told him that the deceased had
been assaulted by the appellant. Keshav corroborated Bava Tapu in this respect.
Keshav's evidence in this respect is also corroborated by Natha Jiwa who stated
that Bava Tapu came and informed Keshav that Zina Hira had been severely
assaulted and injured by the appellant. Bogha Jiwa also corroborated Keshav in
this respect. None of these witnesses have any real motive to depose against
the appellant. In addition to this evidence there was the dying declaration of
the deceased as to who his assailant was.
Furthermore, there was the recovery of a
stick buried underground at the instance of the appellant which was found to be
stained with human blood according to the report of the Serologist. The other
circumstantial evidence need not be referred to.
It was urged on behalf of the appellant that
the reason for the appellant assaulting the deceased could not be true as no
reference was made to it in the First Information lodged by Keshav. Reference
also was made to the evidence of the Police Officer Priyakant that no
information of the theft had been lodged by the appellant at the thana. The
appellant in his statement denied that the deceased had committed any theft in
his house and the witness Karsan brother of the appellant had stated in cross
examination that there had been no theft in their house. This witness was
examined by the prosecution but was declared hostile and permission was granted
by the Court to cross-examine him.
It seems to us, however, that even if the
story about the accusation of theft against the deceased made by the appellant
was not stated in the First Information the omission is of little consequence
because even 137 Keshav stated in the First Information that he ha( enquired
from Bava Tapu as to how the quarrel ha( started. Merely because there was no
information lodged about the theft at the police station, it doe not necessarily
follow that the appellant could no have been suspecting the deceased. The
denial of the appellant and of his brother cannot assume much. importance as it
would be natural for them to den, any such thing. Apart from this even if the
read cause for the assault may be obscure, if the evidenc is clear that the
appellant assaulted the deceased, matters very little if the Court has not
before it a verclear motive for the assault.
As we have already said apart from Bava Tapu
hesitating to admit that he was somewhat related to the deceased, there was no
apparent motive for him to depose against the appellant in such a serious case
as this. His conduct would show that he had, in fact, witnessed the assault
because, immediately after the assault he went to the Police Patel Keshav and
informed him that the appellant had assaulted the deceased with a stick. There
is no reason to doubt the genuineness of the dying declaration. There is no
good reason for supposing that the deceased would have accused the appellant falsely
a there was no previous enemity established. It is also unlikely that he would
let go his real assailant and accuse the appellant falsely. The dying
declaration in corroborated by the evidence of the eyewitness Bava Tapu. It
further receives corroboration from the recovery of the stick stained with
human blood at the instance of the appellant which had been identified by Bava
Tapu as belonging to the appellant.
It is clear, therefore, that the evidence in
the case which we have carefully examined and see no good reason to distrust,
established beyond doubt that the appellant had struck the deceased several
blows with a stick and thus caused his death. He was, therefore, guilty at
least under s. 304 of the Indian Penal Code as found by the trial court.
The reduced sentence imposed by the High
-Court does not appear to be unduly severe' The appeal is, accordingly,