Andhra HC (Pre-Telangana)
Kelaka Ramana @ Stanely Jones vs State Of A.P. Rep. By Public Prosecutor on 21 February, 2003
Equivalent citations: 2003(1)ALD(CRI)590, 2003(1)ALT(CRI)461, 2003CRILJ3227
Author: Bilal Nazki
Bench: Bilal Nazki, G. Rohini
ORDER Bilal Nazki, J.
1. This is a reference made by the learned single Judge of this Court in an appeal filed by the accused against the conviction and sentence passed in S.C. No. 249 of 1997 on the file of the Sessions Judge, West Godavari District. He was charged with offences under Sections 302 and 309 of the Indian Penal Code. He pleaded not guilty and was tried. He was convicted of the offences under Sections 304, Part-I and 309 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.500/- for the offence under Section 304, Part-I of I.P.C. and rigorous imprisonment for six months for the offence under Section 309 of I.P.C.
2. The learned single Judge, after hearing the matter, found that the trial Court had accepted the entire prosecution case, but had not convicted the accused under Section 302 of I.P.C., instead convicted him under Section 304, Part-I of I.P.C. The learned single Judge further found that the trial Court had not given any reasons for not convicting the accused under Section 302 of I.P.C. and it also had not given any reasons for convicting the accused under Section 304, Part-I of I.P.C. According to the learned single Judge, the case was proved against the accused under Section 302 of I.P.C for which he had been charged. Therefore, while issuing notice to the accused/appellant made the following order of reference, "Since this appeal is through jail and further having regard to the fact that the offence punishable under Section 302 I.P.C. is a major offence to the one under Section 304, Part-I I.P.C., it is necessary to give notice to the accused and the matter requires to be heard by a Division Bench as the offence is sought to be brought under the one punishable under Section 302 I.P.C."
3. The learned Chief Justice constituted the present Division Bench. Nobody appeared before the learned single Judge for the accused/appellant who is in jail. Nobody appeared before us also, although a notice had been sent to him. Therefore, we requested Sri C. Padmanabha Reddy, learned senior counsel to assist this Court as amicus curiae in the matter. We have heard the learned senior counsel and also the learned Public Prosecutor.
4. Now before us there is a pure question of law which has to be decided by us as to whether an accused who is convicted of an offence could be convicted for a higher offence carrying more sentence than the one under which he has been convicted on an appeal filed by him against his conviction. Admittedly the State did not file any appeal against the acquittal of the accused under Section 302 of I.P.C. It is only the accused who came before the Court challenging the conviction and sentence passed against him under Sections under Sections 304, Part-I and 309 of I.P.C. Before coming to the law, it would be necessary to have a glance over the relevant provisions of the Code of Criminal Procedure (for short "the Code").
5. Appeals from conviction are provided under Section 374 of the Code. Under sub-section (2) of Section 374 of the Code any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has a right to file an appeal before the High Court. Section 377 of the Code gives a right to the State Government to direct the Public Prosecutor to file an appeal against the sentence on the ground of its inadequacy. Section 378 of the Code gives a right to the State Government to direct the Public Prosecutor to file an appeal before the High Court against an order of acquittal. Powers of the Appellate Court are laid down under Section 386 of the Code. We are not concerned in the present case with Section 386 (a) of the Code, we are concerned with Section 386 (b) of the Code as the learned single Judge was hearing an appeal against the conviction and sentence. Section 386 (b) of the Code lays down the powers of the Appellate Court in case of appeals against the conviction and sentence and the Appellate Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may-
"(b) in an appeal from a conviction-,
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;"
6. There are only three modes which the Appellate Court can adopt while hearing of an appeal against the conviction and sentence. In terms of Section 386 (b) (i) of the Code it may reverse the finding and sentence, acquit or discharge the accused or it may order his re-trial. In the present case the learned single Judge did not express any opinion of a re-trial. Under Section 386 (b) (ii) the Appellate Court may alter the finding, but maintain the sentence and under Section 386 (b) (iii) it may or may not alter the finding, but it may alter the sentence, but not so as to enhance the same. So from bare perusal of the provision it becomes clear that in no case the Appellate Court can alter a sentence so as to enhance the same. So if an accused who has been convicted under Section 304, Part-I of I.P.C. and sentenced to undergo imprisonment provided under that Section cannot be convicted under Section 302 of I.P.C. where decidedly the punishment would be life imprisonment or death. Secondly without an appeal by the State there is no mechanism for the Appellate Court whereby the acquittal could be converted into conviction. The accused in this case has been acquitted of the offence under Section 302 of I.P.C. By no stretch of imagination this acquittal could be converted into conviction in terms of the powers granted to Appellate Court under Section 386 (b) of the Code. In this case reference can be made to various judgments of the Supreme Court. In a judgment reported in State of Andhra Pradesh Vs. Thadi Narayana, 1962 (1) Crl.L.J. 207 a three-Judge Bench of the Supreme Court was considering the following question, "The short and interesting question which arises for our decision in the present appeal is in respect of the powers of the High Court in disposing of appeals under S. 423 (1) (b) of the Code of Criminal Procedure. In dealing with an appeal preferred by a convicted person against the order of conviction and sentence imposed on him by the trial Court can the High Court in exercise of its appellate powers under S. 423 (1) (b) reverse the finding of acquittal recorded by the trial Court in favour of the appellant in respect of an offence which is directly not the subject matter of the appeal? On this question there has been a difference of opinion amongst our High Courts, and it appears from reported decisions that in the same High Court sometimes conflicting views have been expressed on the point." (After amendment Section 423 of the Code is, as it was, numbered as Section 386 of the Code)
7. After considering the various judgments the Supreme Court laid down the following law in paras 7 and 9, "Section 423(1)(b)(1) in terms deals with an appeal from a conviction, and it empowers the appellate court to reverse the finding and sentence and acquit or discharge the accused or order a retrial by a court of competent jurisdiction subordinate to such appellate court or committed for trial. In the context it is obvious that "the finding" must mean the finding of guilt. The words "the finding and sentence" are co-related. They indicate that the finding in question is the cause and the sentence is the consequence; and so what the appellate court is empowered to reverse is the finding of guilt and consequently the order as to sentence. There is no difficulty in holding that Section 423(1)(b)(1) postulates the presence of an order of sentence against the accused and it is in that context that it empowers the appellate court to reverse the finding of guilt and sentence and then to pass any one of the appropriate orders therein specified. In our opinion Section 423(1)(b)(1) is, therefore, clearly confined to cases of appeals preferred against orders of conviction and sentence, and the powers exercisable under it are therefore conditioned by the said consideration. It is impossible to accede to the argument that the powers conferred by this clause can be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. There can thus be no doubt that the order passed by Mr Justice Naidu cannot be justified under this clause.
"It is urged by Mr Choudhury on behalf of the appellant that in construing the expression "alter the finding" it would be necessary to remember that when the High Court deals with an appeal against conviction the proceedings in the appellate court are in substance a continuation of the proceedings in the trial court and so the entire case is in that sense pending before the appellate court. The argument is that in exercising the powers conferred on it by Section 423(1)(b)(2) the High Court is not confined only to the order of conviction which is directly the subject-matter of the appeal but it is possessed of the entire proceedings of the case against the accused and it is in the light of this fact that the expression "alter the finding" must be construed. In our opinion, this argument is not well founded. The scheme of Section 423 itself clearly shows that when appeals against conviction are brought before the appellate court by the convicted person it is only with the orders of conviction and matters incidental thereto that fall to be decided by the appellate court. An order of acquittal passed in favour of an accused person can be challenged by an appeal as provided by Section 417 of the Code, and Section 423(1)(a) therefore expressly deals with the powers of the High Court in dealing with such appeals against orders of acquittals. Prima facie, if an order of acquittal is not challenged by an appeal as contemplated by Section 417 and if no action is taken by the High Court under Section 439 the said order of acquittal becomes final and cannot be impugned indirectly by the State in resisting an appeal filed by a convicted person against his conviction. In a case where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the appellate court. If an appeal is preferred against an order of acquittal by the State and no appeal is filed by the convicted person against his conviction it is only the order of acquittal which falls to be considered by the appellate court and not the order of conviction. Similarly, if an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the appellate court and not the order of acquittal. Therefore, the assumption that the whole case is before the High Court when it entertains an appeal against conviction is not well founded and as such it cannot be pressed into service in construing the expression "alter the finding".
8. The same principles were accepted in a subsequent judgment reported in Akalu Ahir Vs. Ramdeo Ram, , although the Supreme Court was dealing with revisional jurisdiction of the High Court in matters concerning acquittal of accused. Therefore, in our view, the law is settled that an appeal against conviction could not be converted into an appeal against acquittal for which there are different provisions in the Code of Criminal Procedure. Since the accused in this case has been acquitted of the offence under Section 302 of I.P.C., he could not be asked to face a case under Section 302 of I.P.C. by the High Court, while it was dealing with the appeal filed by him against conviction. There is another angle to this case. Appeals from convictions are provided under Section 374 of the Code. We are not concerned with sub-section (1) of Section 374 of the Code, but with sub-section (3) of Section 374 of the Code, which is reproduced below, "(3) Save as otherwise provided in sub-section (2), any person, --
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of who an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Sessions."
9. This sub-section (3) is only reproduced to show that appeals from convictions are not within the exclusive domain of the High Court and in certain matters the Court of Sessions can be a Court of Appeal, whereas in terms of Section 378 of the Code all appeals against acquittal can be entertained only by the High Court. Therefore, if an interpretation is given to various sections of the Chapter-XXIX of the Code that in an appeal against conviction the accused can be convicted by the Appellate Court for an offence of which he was acquitted, then it would also mean that even the Court of Sessions can hear the appeals against acquittals, which is clearly barred by Section 378 of the Code. Therefore, in our view, unless an appeal is filed against acquittal by the State, the High Court or any other Appellate Court would not be correct in passing an order of conviction in an appeal filed by an accused against his conviction for other offence of which he was convicted. Since the accused is not being represented before us as he is in jail, therefore we decline to hear the appeal on merits. The learned single Judge has not decided the appeal so far, he had only expressed certain views and referred the matter to the Division Bench in order to enable the accused to put forth his case against the conviction and sentence under Section 302 of I.P.C. We remand the case back to the learned single Judge for judgment on merits on the appeal against the conviction. The State Legal Services Authority may be notified to appoint a counsel for the accused-appellant.