IMPORTANT POINT
Powers of Appellate Court – Court which convicts accused for first time has to hear accused on sentence – Appellate Court cannot relegate the matter to Court below only for the purpose of imposing sentence after appellate Court had recorded conviction.

JUDGMENT :

K.V. Viswanathan, J.

1. Leave granted.

2. The present appeals call in question the correctness of the judgment and order dated 23.04.2026 passed by the High Court at Calcutta (Circuit Bench at Port Blair) in CRA (DB)/6/2024 and CRA (DB)/4/2024.

3. The appeals before the High Court, one by the State [CRA (DB)/4/2024] and one by the victim Ms. X [CRA (DB)/6/2024], in turn, challenged the correctness of the judgment of acquittal dated 24.04.2024 passed by the learned Sessions Judge, Andaman and Nicobar Islands at Port Blair in Sessions Case No.32/2015.

4. The appellant stood trial before the learned Sessions Judge, Andaman and Nicobar Islands for offences punishable under Sections 376, 312 and 417 of the Indian Penal Code, 1860 (for short the “IPC”). By the judgment dated 24.04.2024, the learned Sessions Judge acquitted the appellant of all the offences charged.

5. The High Court, hearing the appeal against acquittal, found the appellant guilty of offences punishable under Section 376 and 312 IPC. The High Court recorded the following in para 108 of the judgment:-

“108. In view of the discussion above, we have come to the conclusion on the basis of testimony of the VL in the relevant sessions trial along with the evidence of supporting vital witnesses, that VL was sexually abused on the pretext of marriage at the instance of Mukesh knowing fully well that such promise to marry was false from the very beginning of the relevant relationship between him and the victim. The alleged consent of the VL was procured on her misconception of the fact that Mukesh had the intention to marry her. There is also evidence to the effect that to shield the pregnancy of the VL, Mukesh persuaded her to consume pills for terminating her pregnancy, being fully aware that his promise to marry the VL was false, and as such we have found that Mukesh is guilty of the offence punishable under Section 376 and also under Section 312 IPC. The learned Trial Judge did not analyse the evidence on record in its proper perspective. The impugned judgment has occasioned failure of justice and in view of such palpable error, irregularity and illegality in the judgment, we are inclined to set aside the said judgment of acquittal and accordingly we do so. As there was a clear failure of justice, we pronounce the judgment of conviction against Mukesh Kumar Yadav and accordingly, we find that Mukesh Kumar Yadav is guilty of offences punishable under Section 376/312 IPC and he is, thus convicted for the offences under section 376/312 IPC. The convict Mukesh is directed to surrender before the learned Trial Judge by 22nd May, 2026 and on his surrender the learned trial judge shall take him into custody and shall pronounce and impose the proper sentence under Sections 376/312 IPC after hearing on the point of sentence in accordance with law. If the convict fails to surrender on or before the appointed day the learned Trial Judge shall issue warrant of arrest against him. However, we make it clear that within 7 days of his surrender on production in execution of warrant or arrest, as the case may be, the learned Trial Judge shall pronounce the sentence after complying with all the legal formalities. The appeals being CRA (DB) 6 of 2024 and CRA (DB) 4 of 2024 are allowed. The judgment of acquittal dated 24.04.2024 passed by the learned Sessions Judge Andaman and Nicobar Islands at Port Blair in connection with Sessions case no. 32 of 2015 corresponding to Sessions Trial No. 16 of October 2015 is hereby set aside.”

(Emphasis supplied)

6. What