of M.P. Vs. Killu
@ Kailash Vishwakarma  Insc 543 (5 October 2005)
CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan (Arising out of Special Leave Petition (Crl.) No. 4538/2004) G. P. MATHUR,
1. Delay in filing the special leave petition is condoned.
2. Leave granted.
3. This appeal has been preferred by the State of M.P. against the judgment
and order dated 25.7.2003 of Justice N.S. Azad of M.P. High Court in Crl.
Appeal No. 1353 of 2002.
4. The trial Court convicted the accused under Sections 376 and 306 I.P.C.
He was awarded a sentence of 7 years R.I. and a fine of Rs.1000/- and in
default to undergo R.I. for a further period of six months under each count.
The High Court partly allowed the appeal and while upholding the conviction of
the accused on various counts reduced the sentence to the period already
undergone which is nearly 2 years and 4 months.
5. Learned counsel for the appellant has submitted that the sentence imposed
by the High Court is wholly inadequate looking to the nature of the offence and
is contrary to the minimum prescribed by law.
6. Sub-section (1) of Section 376 I.P.C. provides that whoever, except in
the cases provided for by sub-section (2), commits rape shall be punished with
imprisonment of either description for a term which shall not be less than 7
years but which may be for life or for a term which may extend to 10 years and
shall also be liable to fine. In the category of cases covered under
sub-section (2) of Section 376, the sentence cannot be less than 10 years but
which may be for life and shall also be liable to fine.
The proviso appended to sub-section (1) lays down that the Court may for
adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than 7 years. There is a similar proviso to
sub-section (2) which empowers the Court to award a sentence of less than 10
years for adequate and special reasons to be mentioned in the judgment. The
High Court in the impugned order has awarded a sentence which is not only
grossly inadequate but is also contrary to express provision of law. The High
Court has not assigned any satisfactory reason much less adequate and special
reasons for reducing the sentence to a term which is far below the prescribed minimum.
Therefore, the sentence awarded by the High Court is clearly illegal.
7. That apart, the High Court has written a very short and cryptic judgment.
To say the least, the appeal has been disposed of in a most unsatisfactory
manner exhibiting complete non-application of mind. There is absolutely no
consideration of the evidence adduced by the parties.
8. Chapter XXIX of Code of Criminal Procedure deals with APPEALS. Section
384 Cr.P.C. empowers the appellate Court to dismiss an appeal summarily if it considers
that there is no sufficient ground for interference. Section 385 Cr.P.C. gives
the procedure for hearing appeals not dismissed summarily and Section 386 Cr.P.C.
gives the powers of the appellate Court. In Amar Singh v. Balwinder Singh 2003
(2) SCC 518, the duty of the appellate Court while hearing a criminal appeal in
the light of the aforesaid provisions was explained and para 7 of the report
reads as under :
"7. The learned Sessions Judge after placing reliance on the testimony
of the eye-witnesses and the medical evidence on record was of the opinion that
the case of the prosecution was fully established. Surprisingly, the High Court
did not at all consider the testimony of the eye witnesses and completely
ignored the same. Section 384 Cr.P.C.
empowers the Appellate Court to dismiss the appeal summarily if it considers
that there is no sufficient ground for interference. Section 385 Cr.P.C. lays
down the procedure for hearing appeal not dismissed summarily and sub-section
(2) thereof casts an obligation to send for the records of the case and to hear
the parties. Section 386 Cr.P.C. lays down that after perusing such record and
hearing the appellant or his pleader and the Public Prosecutor, the Appellate
Court may, in an appeal from conviction, reverse the finding and sentence and
acquit or discharge the accused or order him to be re-tried by a Court of
competent jurisdiction. It is, therefore, mandatory for the Appellate Court to
peruse the record which will necessarily mean the statement of the witnesses.
In a case based upon direct eye-witness account, the testimony of the eye-
witnesses is of paramount importance and if the Appellate Court reverses the
finding recorded by the Trial Court and acquits the accused without considering
or examining the testimony of the eye-witnesses, it will be a clear infraction
of Section 386 Cr.P.C. In Biswanath Ghosh v. State of West Bengal & Ors.
AIR 1987 SC 1155 it was held that where the High Court acquitted the accused in
appeal against conviction without waiting for arrival of records from the
Sessions Court and without perusing evidence adduced by prosecution, there was
a flagrant mis-carriage of justice and the order of acquittal was liable to be
It was further held that the fact that the Public Prosecutor conceded that
there was no evidence, was not enough and the High Court had to satisfy itself
upon perusal of the records that there was no reliable and credible evidence to
warrant the conviction of the accused. In State of UP v.
Sahai & Ors. AIR 1981 SC 1442 it was observed that where the High Court
has not cared to examine the details of the intrinsic merits of the evidence of
the eye-witnesses and has rejected their evidence on the general grounds, the
order of acquittal passed by the High Court resulted in a gross and substantial
mis-carriage of justice so as to invoke extra- ordinary jurisdiction of Supreme
Court under Article 136 of the Constitution."
9. Since the judgment of the High Court is not in accordance with law, we
have no option but to set aside the same and to remit the matter back to the
High Court for a fresh consideration of the appeal. The appeal preferred by the
State of M.P. is accordingly allowed, the judgment and order of the High Court
is set aside and the appeal is remanded back to the High Court for a fresh
hearing after issuing notice to the accused respondent. It is made clear that
we have not gone into the merits of the case and the High Court shall
reappraise and examine the evidence on record and decide the appeal in
accordance with law.