SUPREME COURT OF INDIA
State of M.P.
Vs.
Gauri Shankar
Crl.A.No.1285 of 2005
(R.C.Lahoti CJI. and G.P.Mathur JJ.)
04.10.2005
G. P. Mathur, J.
1. Delay in filing and refiling 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 1.7.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal No.
580 of 1998.
4. The trial Court convicted the accused under Section 376 I.P.C. and Section
3(1)(xi) of the SC/ST (Prevention of Atrocities) Act and sentenced him to
various terms of imprisonment and fine. He was awarded a sentence of 7 years
R.I. and a fine of Rs.5000/- and in default to undergo R.I. for a further
period of 18 months under Section 376 I.P.C. 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 15 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 (referred), 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. (referred)
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 set aside.
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. 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.