Patna High Court - Orders
Md. Vakil vs The State Of Bihar on 19 February, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.344 of 2015
Arising Out of PS.Case No. -253 Year- 2013 Thana -JAGDISHPUR District- BHAGALPUR
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Arun Das S/o Mukundi Das Resident of Village Nayachak, Police Station
Kajreli, District Bhagalpur.
.... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
======================================================
with
Criminal Appeal (SJ) No.367 of 2015
Arising Out of PS.Case No. -253 Year- 2013 Thana -JAGDISHPUR District- BHAGALPUR
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Md. Vakil S/o Late Md. Makin @ Makko R/o village - Tamoni Shahpur,
P.S. Kajraili, Distt. - Bhagalpur
.... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
======================================================
with
Criminal Appeal (SJ) No.551 of 2015
Arising Out of PS.Case No. -253 Year- 2013 Thana -JAGDISHPUR District- BHAGALPUR
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Madan Mandal S/o Radhey Mandal R/o Village Nayachak, P.S. Kajrali,
District Bhagalpur.
.... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
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Appearance :
(In CR. APP (SJ) No.344 of 2015)
For the Appellant/s : Mr. Ajay Mukherjee, Adv.
For the Respondent/s : Mr. Binod Bihari Singh (App)
(In CR. APP (SJ) No.367 of 2015)
For the Appellant/s : Mr. Pravin Kumar Sinha, Adv.
For the Respondent/s : Mr. Binod Bihari Singh (App)
(In CR. APP (SJ) No.551 of 2015)
For the Appellant/s : Mr. Pravin Kumar Sinha, Adv.
For the Respondent/s : Mr. Bipin Kumar(App)
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
1. 5 19-02-2018 Appellants were charged for an offence punishable under Section 302/34, 201/34 of the IPC but, the learned trial court found them guilty for an offence punishable under Section 304 Part-II of the IPC and accordingly sentenced to undergo R.I. for seven years as well as to pay fine appertaining Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 2 to rupees ten thousand each and in default thereof, to undergo S.I. for one year.
2. The gist of the case is that the deceased Banti as well as the accused persons /appellants were driver. At an earlier occasion there was some sort of dispute amongst them but, they have not allowed impact of their conflict over their relationship and in the aforesaid background, they continued to relish their company and, in the aforesaid backdrop, in the night of 23.11.2013 the appellants took away deceased Banti and on the following day, his dead body was found. During trial Doctor has not been examined but, postmortem report happens to be Ext.4 wherefrom it is e vident that there happens to be presence of altogether seven ante-mortem injuries. From the order sheet dated 09-03-2015, it is evident that postmortem report has been exhibited in accordance with Section 294 of the Cr.P.C. as, the document has been treated as public document and further, appellants have not put any kind of objection.
3. After going through the judgment more particularly from para-27 to 29, it is e vident that no cogent, convincing, legal ground has been disclosed in order to attract Section 304 Part-II of the IPC instead of 302 of the IPC. In the background of the fact that deceased was taken away by the appellants and subsequently thereof, his dead body was found and during midst thereof, there happens to be no explanation at the end of the appellants whether deceased had parted with their company, side by side, in terms of Section 106 of the Evidence Act they also failed to explain the same. So, theory of last seen Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 3 survives.
4. From Ext.4, postmortem report it is evident that postmortem was conducted on 14-11-2014 at about 12:15 noon and time elapsed since death has been estimated within 6-12 hours prior to the conduction of the postmortem report which covers the time as stipulated by the witnesses during course of evidence disclosing specifically that these appellants took away the deceased and on the following morning his dead body was found. Taking away followed with recovery of dead body is a circumstance which suggest that the occurrence was committed in preplanned manner and in absence of other kind of evidence on record, there was no opportunity available before the Court to infer otherwise, as held, through detailed discussion is avoided at the present moment so that it would not prejudice interest of the appellants.
5. In Prithipal Singh v. State of Punjab reported in (2012) 1 SCC 10, it has been held:
"53. In Sta te of W.B. v. Mir Mohammad Omar (2000) 8 SCC 382 this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him.
It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 4 knowledge of the accused. (See also Shambhu Nath Mehra v. Sta te of Ajmer AIR 1956 SC 404, Sucha Singh v. State of Punjab (2001) 4 SCC 375 and Sahadevan v. Sta te (2003) 1 SCC 534.)"
6. In Bodhraj v. State of J&K reported in (2002) 8 SCC 45, it has been held:
"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2."
7. In Kiriti Pal v. State of W.B. reported in 2015 Cr.L.J. 3152, it has been held:
"15. Having regard to the time gap being small, it is for the first appellant to explain the circumstances how and where and in what manner he parted company with Anjali. Thus, on the principle that the person who is last found in the company of another is dead or missing, the person with whom he was last found alive has to explain the circumstances in which he parted company. As pointed out by the trial court and the High Court, the first appellant has failed to discharge the onus and failed to offer any explanation as to how, as to when and how and in what manner he parted the company of Anjali, is a strong militating circumstance against the first appellant Kiriti Pal. There is force in the submission of the learned counsel for the State that the first appellant Kiriti Pal failed to offer any explanation, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 5 Evidence Act."
8. In Gandi Doddabasappa v. State of Karnataka reported in (2017) 5 SCC 415, it has been held:
"25. We would first deal with the request of the appellant to permit him to withdraw this appeal. We have no hesitation in saying that this Court after hearing the parties and having been prima facie convinced, issued show-cause notice to the appellant for enhancement of sentence. In this backdrop, we cannot permit the appellant to withdraw the appeal. We say so because the show-cause notice issued to the appellant (accused) in terms of the order dated 8-9-2016, will have to be taken to its logical end being substantive proceedings ascribable to the jurisdiction of the appellate court under Section 386 or read with Sections 397 and 401 of the Criminal Procedure Code, 1973 (CrPC) and, in this case, plenary jurisdiction of the Supreme Court. The show-cause notice for enhancement of sentence must proceed on the principle underlying the exposition of law in Khedu Mohton v. Sta te of Bihar (1970) 2 SCC 450.
In that case, the complainant died during the pendency of appeal against acquittal before the High Court and therefore, it was urged by the accused that the said appeal had abated. This Court rejected that plea of the accused, having found that the appeal abates only on the death of the accused. The Court then observed that once an appeal against acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant does not choose to prosecute it or is unable to prosecute it for one reason or the other. Applying the same analogy to a suo motu show-cause notice for enhancement of sentence issued by this Court after hearing both sides, it will be the duty of this Court to decide the same irrespective of the fact that the accused does not want to prosecute his appeal against conviction. It may be apposite to also refer to the decision of this Court in Deo Narain Mandal v. State of U.P. (2004) 7 SCC 257. In para 5 of the reported decision, this Court opined that since notice of enhancement of sentence was Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 6 issued it is but proper in law that the court should hear the accused on merits of the case also e ven though the accused had not pressed his appeal on merits before the High Court. In that case, the accused had preferred appeal against reduced conviction before this Court. It is a well- established position in law that during the hearing of notice for enhancement of sentence, as held by this Court in U.J.S. Chopra v. Sta te of Bombay AIR 1955 SC 633, the accused will have the right also to show cause against his conviction when showing cause why his sentence should not be enhanced. Realising this position, the counsel for the appellant vehemently argued for acquittal of the appellant."
9. In Krishnan v. Krishnaveni reported in (1997) 4 SCC 241, it has been observed by the Apex Court:
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order.
9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to pre vent unnecessary delay and multiplicity of proceedings. As seen, under sub-section (3) of Section 397, revisional jurisdiction can be Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 7 invoked by "any person" but the Code has not defined the word "person". However, under Section 11 of the IPC, "person"
includes any company or association or body of persons, whether incorporated or not. The word "person" would, therefore, include not only natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word "person" for the purpose of limiting its right to avail the revisional power of the High Court under Section 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non-cognizable offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report a mistake of fact. In view of the principle laid down in the maxim ex debito justitiae, i.e., in accordance with the requirements of justice, the prohibition under Section 397(3) on revisional power given to the High Court would not apply when the State seeks revision under Section
401. So the State is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code."
10. In Prithipal Singh v. State of Punjab reported in (2012) 1 SCC 10, it has been held:
"35. In Eknath Shankarrao Mukkawar v. State of Maharashtra (1977) 3 SCC 25 this Court held: (SCC p. 28, para 6) "6. We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court‟s power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. The High Court‟s power of enhancement of sentence, in an appropriate case, by exercising suo motu power of re vision is Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 8 still extant under Section 397 read with Section 401, Criminal Procedure Code, 1973, inasmuch as the High Court can „by itself‟ call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court‟s exercise of power of revision, suo motu, which continues as before in the new Code."
36. In Surendra Singh Rautela v. State of Bihar (2002) 1 SCC 266 this Court reconsidered the issue and held: (SCC p. 271, para 8) "8. ... It is well settled that the High Court, suo motu in exercise of revisional jurisdiction can enhance the sentence of an accused awarded by the trial court and the same is not affected merely because an appeal has been provided under Section 377 of the Code for enhancement of sentence and no such appeal has been preferred."
[See also Nadir Khan v. State (Delhi Admn.) (1975) 2 SCC 406, Govind Ramji Jadhav v. State of Maharashtra (1990) 4 SCC 718 and K. Pandurangan v. S.S.R. Velusamy (2003) 8 SCC 625.]
37. In Jayaram Vithoba v. State of Bombay AIR 1956 SC 146 this Court held that the suo motu powers of enhancement under revisional jurisdiction can be exercised only after giving notice/opportunity of hearing to the accused.
38. In view of the above, the law can be summarised that the High Court in exercise of its power under Section 386(e) CrPC is competent to enhance the sentence suo motu. However, such a course is permissible only after giving opportunity of hearing to the accused."
11. In Nadir Khan v. State (Delhi Admn.) reported in AIR 1976 SC 2205, it has been held:
"4. It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 9 criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by rearrangement of the sections. It is true the new Code has expressly given a right to the State under Section 377 CrPC to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Article 136 of the Constitution.
5. Section 401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court. The provisions under Section 401 read with Section 386(c)(iii) CrPC are clearly supplemental to those under Section 377 whereby appeals are provided for against inadequacy of sentence at the instance of the State Government or Central Government, as the case may be. There is therefore absolutely no merit in the contention of the learned counsel that the High Court acted without jurisdiction in exercising the power of revision suo motu, for enhancement of the sentence in this case. The application stands rejected."
12. In Sahab Singh v. State of Haryana reported in Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 10 1990 SCC (Cri.) 323, it has been held:
"4. Section 374 of the Code of Criminal Procedure („the Code‟ hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub-section (3) of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence. Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, IPC. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 of the Code. Sub-section (2) of Section 401 provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Sub-section (4) next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. It is clear from a conjoint reading of Sections 377, 386, 397 and 401 that if the State Government is aggrieved about the Patna High Court CR. APP (SJ) No.344 of 2015 (5) dt.19-02-2018 11 inadequacy of the sentence it can prefer an appeal under Section 377(1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub- section (4) of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub-section cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate. The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the trial court."
13. That being so, appellants are being noticed why not they be convicted and sentenced for an offence punishable under Section 302 of the IPC and accordingly, office is directed to issue show-cause. Because of the fact that as per Patna High Court Rules the matter is to be heard by the Division Bench on account thereof, office is directed to place before the Division Bench after taking permission from Hon‟ble the Chief Justice.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
U T