Headnote:
Indian Penal Code,1860 – Section 302, 304(I) r/w 149 and 147 – Criminal Procedure Code,1973 – Section 377(1) and 401 - Attempt to murder - Offence of murder - Accused were convicted by Sessions Judge of an offence under Section 304 Part I read with Section 149 I.P.C. and were sentenced to rigorous imprisonment for 10 years and fine - Remaining two accused were convicted of an offence under Section 304 Part I read with Section 149 I.P.C. but they were sentenced to rigorous imprisonment for 5 years and a fine - Further, they were convicted of an offence under Section 147 - An appeal was filed by accused against their conviction and sentence; and State filed an appeal for their conviction and sentence under Section 302 I. P. C. - Revision petition was filed under Section 401 Cr. P. C. for enhancement of sentence of imprisonment and fine "to meet the ends of justice - High Court of Punjab and Haryana made an express order that revision petition would be heard along with the criminal appeal filed by the accused – Held, it has also been concurrently found that accused took away chopped off leg of deceased after wrapping it in his turban, and that he succumbed to the injuries soon after - Fact and the circumstances which have thus been established by the evidence of P. W. 4, and P.W. 5 on which reliance has been placed by both the Courts, justify the view taken by High Court that the accused deserved sentence awarded to them by it - Learned counsel for the accused tried to argue that conviction of the accused was not justified on merits, and took court through the finding in regard to the motive for offence, nature of the medical evidence, plea of self-defence taken by accused and the relationship of eye-witnesses P.W. 4 and P.W.5 with deceased Apart from fact that there was no occasion for court to consider those arguments, court have no hesitation in saying that they are without merit - Petition dismissed.

Judgement Key Points

Key Points: - The High Court dismissed the accused's appeal but enhanced the sentences of some accused and partly accepted the State's appeal for enhancement of punishment (!) . - An argument was made that the High Court erred in enhancing sentences without giving the accused an opportunity to show cause against it, as per Section 377(3) Cr. P.C. (!) . - The court found no illegality in not complying with Section 377(3) Cr. P.C. because the State Government did not file an appeal against the sentence under Section 377(1) Cr. P.C., and its appeal was directed against acquittal for a more serious offense (!) . - A revision petition under Section 401 Cr. P.C. for enhancement of sentence was maintainable as the revision petitioner could not file an appeal under Section 377 (!) . - The High Court had expressly ordered the revision petition to be heard along with the criminal appeal filed by the accused (!) (!) . - The High Court's judgment effectively disposed of both appeals and the revision petition, even if the revision petition was not explicitly mentioned in the operative part of the order, which was an inadvertent mistake (!) . - The opportunity for pleading for acquittal was provided during the hearing of the accused's own appeal, and the same appeal provided an opportunity to plead for sentence reduction (!) . - The hearing of the State's appeal against acquittal along with the accused's appeal provided further opportunity to the accused to plead for acquittal, sentence reduction, or show cause against enhancement (!) . - Under Section 401 Cr. P.C., the High Court can exercise the powers of a Court of Appeal under Section 386 to enhance or reduce a sentence (!) . - The concurrent findings of the trial court and the High Court regarding the brutal nature of the offense and the established facts justified the sentence awarded by the High Court (!) . - Arguments regarding the conviction on merits, motive, medical evidence, and self-defense were considered without merit (!) . - The petition for special leave to appeal was dismissed (!) (!) .

What are the rights of an accused when a sentence is sought to be enhanced in a revision petition?

What is the scope of revisional powers under Section 401 Cr. P.C. regarding sentence enhancement?

What is the procedure for enhancing a sentence when a revision petition is filed alongside an appeal?

JUDGMENT

SHINGHAL, J.:—We have heard learned counsel for the parties at length.

2. Accused Bachan Singh, Gurnam Singh and Chanan Singh were convicted by the Sessions Judge of Gurdaspur of an offence under Section 304 Part I read with Section 149 I.P.C. and were sentenced to rigorous imprisonment for 10 years and a fine of Rs.1000/-. They were also convicted of an offence under Section 149 I.P.C. and sentenced to rigorous imprisonment for 2 years. The remaining two accused Ravail Singh and Vir Singh were convicted of an offence under Section 304 Part I read with Section 149 I.P.C. but they were sentenced to rigorous imprisonment for 5 years and a fine of Rs. 500/-. Further, they were convicted of an offence under Section 147 imprisonment for 1 year.

3. An appeal was filed by the accused against their conviction and sentence; and the State filed an appeal for their conviction and sentence under Section 302 I. P. C. A. revision petition was filed under Section 401 Cr. P. C. for enhancement of the sentence of imprisonment and fine "to meet the ends of justice." The High Court of Punjab and Haryana made an express order on December 9, 1974 that the revision petition would be heard along with the criminal appeal (No. 1039 of 1974) filed by the accused.

4. By its impugned judgment dated January 3, 1978, the High Court dismissed the appeal which was filed by the accused, but enhanced the sentence of Bachan Singh, Gurnam Singh and Chanan Singh accused under Section 304 Part I read with Section 149 I.P.C. to regorous imprisonment for life and of accused Ravail Singh and Vir Singh under the same section to rigorous imprisonment for 10 years. While making that order, the High Court observed that the State appeal "for enhancement of punishment" was "partly accepted". That is why all the five accused have applied to this Court for special leave under Article 136 of the Constitution.

5. It has been argued by learned counsel for the accused that the High Court committed an error of law in enhancing the sentence of the accused without giving them a responsible opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub-section (3) of Section 377 of the Code of Criminal Procedure.

6. It appears to us, however, that as the State Government did not file an appeal against the sentence under sub-section (1) of Section 377 Cr. P. C., and as it is not disputed before us that its appeal was directed against the acquittal of the accused for the offence under Section 302 I.P.C., there is no justification for the argument that the High Court committed an illegality in not complying with the requirement of sub-section (3) of that section for giving the opportunity to the accused of showing cause against the enhancement of the sentence or of pleading for their acquittal or for reduction of the sentence.

7. As has been stated, a petition was filed under Section 401 Cr. P. C. for enhancement of the sentence, and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under Section 377. It will be recalled that the High Court made an express order on December 9, 1974, for the hearing of the revision petition along with the appeal which had been filed by the accused.

8. The fact therefore remains that the High Court had before it the abovementioned appeals which had been filed by the accused and the State, and the revision petition under Section 401 Cr. P. C. for enhancement of the sentence. While that court dismissed the appeal of the accused, and allowed the appeal of the State in part, it forgot to make a reference to the revision petition while drawing up the operative part of its order. That was an inadvertent mistake for, after reading the impugned judgment of the High Court, we have no doubt that it effectively disposed of both the appeals and the revision petition even though the wordings of the judgment in that

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