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2005 Supreme(SC) 1387
2005(7) Supreme 601
Supreme Court of India
(From Madhya Pradesh High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
State of M.P. —Appellant
versus
Badri @ Bhuru —Respondent
Criminal Appeal No. 1447 of 2005
(Arising out of SLP (Crl.) No. 3336/2004)
Decided on 24-10-2005
Counsel for the Parties :
For the Appellant : Pramod Swarup, C.D. Singh, Sanjay Kumar Singh, Gunratan Pandey and Ms. Kiran Suvarna, Advocates.
For the Respondents : Dharmendra Kumar Sinha, Advocate.
Important point
Where High Court disposed of conviction appeal by a very short, cryptic judgment exhibiting non-application of mind, judgment could not be sustained.
Headnote:Indian Penal Code, 1860—Sections 307 and 341—Criminal Procedure Code, 1973—Sections 385 and 386—Trial Court convicted respondent-accused for offence under and awarded sentence of 7 years imprisonment—High Court upheld conviction but reduced sentence to period undergone which was about 5 months—State appeal—No reasons were assigned for reducing sentence—Judgment was very short and cryptic exhibiting non-application of mind—Impugned judgment was not in accordance with law liable to be set aside and matter remitted back to High Court for fresh consideration of appeal. (Paras 4, 6, 7 and 9)
Judgment
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 16.7.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal No. 2244 of 1997. The appeal is confined as against accused Badri @ Bhuru.
4. The trial Court convicted the accused under Sections 307 and 341 I.P.C. He was awarded a sentence of 7 years R.I. and a fine of Rs. 1,000/- and in default to undergo R.I. for a further period of 3 months under the first count and a fine of Rs. 200/- and in default to undergo 10 days R.I. under the second count. The High Court partly allowed the appeal and while upholding the conviction of the accused under Section 307 I.P.C. reduced the sentence to the period already undergone which is about 5 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.
6. The High Court has not assigned any satisfactory reason for reducing the sentence to about 5 months.
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 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 e
