The court emphasized that it is not permissible to enhance the sentence more than the maximum provided under the Act for the lesser offence of which the person was found guilty.

JUDGMENT :

Rakesh Kainthla, Judge

The present appeal has been filed under Section 377 of Cr.P.C. against the order of conviction and sentence dated 31.03.2023 passed by learned Special Judge-II, Kullu, District Kullu, H.P. in Case No.100 of 2020 (Sessions Trial No.150 of 2020).

2. It has been asserted that the accused was found in possession of 2.500 kgs of charas, which is a commercial quantity. He was liable to imprisonment for not less than 10 years and payment of fine of not less than Rs. 1,00,000/-. However, the accused was sentenced to undergo rigorous imprisonment for six months and payment of fine of Rs.1,000/-. The sentence imposed by the learned Trial Court is inadequate and liable to be enhanced. Hence, the appeal.

3. A doubt was entertained regarding the maintainability of the appeal because as per the judgment and order passed by the learned Special Judge-II, Kullu, District Kullu, H.P., the respondent- accused was held guilty of possessing 50 grams of charas, which is a small quantity. He had undergone the sentence which is more than the maximum sentence that can be awarded for possessing a small quantity of charas. Hence, the matter was listed for consideration whether the Court could enhance the sentence above the maximum prescribed.

4. I have heard Mr. Jitender Sharma, learned Additional Advocate General for the appellant/State, who submitted that the State is aggrieved by the fact that the learned Trial Court had sentenced the accused for the possession of the small quantity of the charas, whereas he was found in possession of the commercial quantity. The sentence imposed by the learned Trial Court is inadequate and is required to be enhanced.

5. I have given considerable thought to his submissions and have gone through the records carefully.

6. Volume-III Chapter 25E Rule 5 of the High Court Rules and Order deals with the appeal for the enhancement of the sentence and states that when a person tried for an offence punishable under Section 302 of IPC is convicted under Section 304 of IPC, the order of the Sessions Judge amounts to an acquittal and the Court has no jurisdiction to alterthe conviction from Section 304 to Section302 of IPC and thereafter enhance the sentence. It has been observed:

“5. In this connection, it should be noted that the Privy Council has held that when a person is tried for an offence under section 302, Indian Penal Code, but is convicted under section 304, Indian Penal Code, and sentenced to a term of imprisonment, the Sessions Judge's order amounts to an acquittal under section 302. On application to a High Court for revision of sentence, the High Court has no jurisdiction in view of the provisions contained in clause (4) of section 439, Criminal Procedure Code, to alter the conviction to one under section 302 and sentence the accused to death. In such cases, an appeal under section 417 of the Code is required to give the High Court jurisdiction, if it is desired to, alter the conviction. (Indian Law Reports, Allahabad, Volume 50, page 722)”

7. In Kishan Singh v. Emperor, 1928 SCC OnLine PC 62: (1927- 28) 55 IA 390 Kishan Singh was charged with the commission of an offence punishable under Section 302 of IPC but he was convicted under Section 304 of IPC. The Privy Council held that the conviction under Section 304 would amount to acquittal under Section 302 of IPC. It was observed:

“On the 18th June 1927 the appellant, Kishan Singh, was charged by a Magistrate of the First Class as follows:

“That you on or about the 20th day of March 1927 at Bharthwa did commit murder by intentionally causing the death of Kuber Singh and Shoran Singh and thereby committed an offence punishable under Sect. 302, Indian Penal Code, and within the cognizance of the Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.”

He was tried on the said charge by the Additional Sessions Judge of Aligarh, with the aid of four assessors, and on the 31st July, 1927 the learned Judge deli