SUPREME COURT OF INDIA
State of M.P
Vs.
Bhura Kunjda
Crl.A.No.1451 of 2005
(R.C.Lahoti CJI. and G.P.Mathur JJ.)
24.10.2005
G.P. Mathur, J.
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 27.1.2004 of Justice N.S. Azad of M.P. High Court in Crl. Appeal
No.2074 of 2000.
4. The trial Court convicted the accused under Section 8 read with Section
20(b) of the N.D.P.S. Act and sentenced him to undergo R.I. for a period of 10
years and a fine of Rs. 1 lakh and in default to undergo R.I. for a further
period of 3 years. The High Court partly allowed the appeal and while upholding
the conviction of the accused under Section 8 read with Section 20(b) of the
N.D.P.S. Act reduced the sentence to the period already undergone which is
nearly 4 years and a fine of Rs.10,000/-.
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.
6. The High Court has not assigned any satisfactory reason for reducing the
sentence and fine.
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 vs.
Balwinder Singh 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 vs. State of West Bengal & Ors. 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 vs. 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.