The powers of the Appellate Court under Section 386 (b) of the Code of Criminal Procedure, 1973 - Whether the High Court was justified in dismissing the appeal filed by the accused and thereby was justified in confirming the conviction and the sentence awarded by the Additional Sessions Judge - High Court in it's Appeal Power has to examine the each and every evidence of the prosecution - on issues arising in the case and the same should have been examined in the light of the challenge made by the accused in appeal and then a finding should have been recorded either of affirmation or modification or reversal, as the case may be. - mere mentioning that the trial court did all things correctly is not enough
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1540 OF 2018
(Arising out of S.L.P.(Crl.) No. 8739 of 2018)
Kanubhai Bhagvanbhai Nayak ….Appellant(s)
VERSUS
State of Gujarat ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 25.04.2016 passed by the High Court
of Gujarat at Ahmedabad in Criminal Appeal No.1512
of 2011 whereby the Division Bench of the High Court
dismissed the appeal filed by the appellant herein and
confirmed the order of conviction and sentence dated
1
30.09.2011 passed by the 9th Additional Sessions
Judge, Vadodara in Sessions Case No.101 of 2010.
3) Few facts need mention hereinbelow for the
disposal of the appeal.
4) By impugned order, the Division Bench of the
High Court dismissed the criminal appeal filed by the
appellant (accused) and confirmed his conviction and
sentence awarded by the 9th Additional Sessions
Judge, Vadodara in Sessions Case No. 101/2010
under Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”) which gave rise to
filing of the present appeal by way of special leave by
the appellant(accused) in this Court.
5) The question, which arises for consideration in
this appeal, is whether the High Court was justified in
dismissing the appeal filed by the accused and thereby
was justified in confirming the conviction and the
sentence awarded by the Additional Sessions Judge.
2
6) Heard Ms. Vibha Datta Makhija, learned senior
counsel for the appellant and Ms. Puja Singh, learned
counsel for the respondent.
7) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
constrained to allow the appeal, set aside the
impugned order and remand the case to the High
Court for deciding the criminal appeal afresh on
merits.
8) The need to remand the case has been
occasioned because we find that the Division Bench
has neither discussed any issue arising in the case nor
appreciated the evidence and nor recorded its findings
on any of the issues arising in the case and urged by
the appellant.
9) Mere perusal of the impugned order would
indicate that the Division Bench has first set out the
post mortem report and on its perusal observed that
3
the injuries on the body of the deceased reveal that the
death was homicidal leading to murder. The Division
Bench then observed that the evidence led by “various
witnesses” reveal that it was the accused who was
present at the scene of the offence and carried the
attack on deceased. The Division Bench then observed
that since the Additional Sessions Judge had
“minutely examined” all the evidence led by the
prosecution and has given cogent and convincing
reasons, the High Court is in complete agreement with
the view taken by the Additional Sessions Judge. It is
only with this narration of facts, the Division Bench
dismissed the appeal.
10) In our opinion, keeping in view the powers of the
Appellate Court under Section 386 (b) of the Code of
Criminal Procedure, 1973, the Division Bench should
have examined the evidence of each prosecution
witnesses on issues arising in the case and the same
4
should have been examined in the light of the
challenge made by the accused in appeal and then a
finding should have been recorded either of affirmation
or modification or reversal, as the case may be.
11) There is neither any reference to any evidence,
nor its appreciation and nor there is any discussion
much less finding in the impugned order.
12) The High Court, in our opinion, is empowered in
its appellate jurisdiction to examine the issues of facts
and law while examining the legality and the
correctness of the impugned order. It is equally
incumbent upon the Division Bench to deal with
issues urged and then record its findings one way or
the other keeping in view the law laid down by this
Court which governs the issues.
5
13) We, therefore, find ourselves unable to concur
with such disposal of the appeal and feel inclined to
set aside the impugned order and remand the case to
the Division Bench of the High Court with a request to
decide the appeal afresh on merits in accordance with
law.
14) Having formed an opinion to remand the case, we
do not consider it proper to go into the merits of the
case. We, therefore, leave all the issues open to be
decided by the Division Bench on merits, in
accordance with law uninfluenced by our
observations.
6
15) In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. Impugned order
is set aside. We request the High Court to dispose of
the appeal as expeditiously as possible preferably
within six months.
16) Pending application(s), if any, stand(s) disposed
of.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[INDU MALHOTRA]
New Delhi;
December 03, 2018
7
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1540 OF 2018
(Arising out of S.L.P.(Crl.) No. 8739 of 2018)
Kanubhai Bhagvanbhai Nayak ….Appellant(s)
VERSUS
State of Gujarat ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 25.04.2016 passed by the High Court
of Gujarat at Ahmedabad in Criminal Appeal No.1512
of 2011 whereby the Division Bench of the High Court
dismissed the appeal filed by the appellant herein and
confirmed the order of conviction and sentence dated
1
30.09.2011 passed by the 9th Additional Sessions
Judge, Vadodara in Sessions Case No.101 of 2010.
3) Few facts need mention hereinbelow for the
disposal of the appeal.
4) By impugned order, the Division Bench of the
High Court dismissed the criminal appeal filed by the
appellant (accused) and confirmed his conviction and
sentence awarded by the 9th Additional Sessions
Judge, Vadodara in Sessions Case No. 101/2010
under Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”) which gave rise to
filing of the present appeal by way of special leave by
the appellant(accused) in this Court.
5) The question, which arises for consideration in
this appeal, is whether the High Court was justified in
dismissing the appeal filed by the accused and thereby
was justified in confirming the conviction and the
sentence awarded by the Additional Sessions Judge.
2
6) Heard Ms. Vibha Datta Makhija, learned senior
counsel for the appellant and Ms. Puja Singh, learned
counsel for the respondent.
7) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
constrained to allow the appeal, set aside the
impugned order and remand the case to the High
Court for deciding the criminal appeal afresh on
merits.
8) The need to remand the case has been
occasioned because we find that the Division Bench
has neither discussed any issue arising in the case nor
appreciated the evidence and nor recorded its findings
on any of the issues arising in the case and urged by
the appellant.
9) Mere perusal of the impugned order would
indicate that the Division Bench has first set out the
post mortem report and on its perusal observed that
3
the injuries on the body of the deceased reveal that the
death was homicidal leading to murder. The Division
Bench then observed that the evidence led by “various
witnesses” reveal that it was the accused who was
present at the scene of the offence and carried the
attack on deceased. The Division Bench then observed
that since the Additional Sessions Judge had
“minutely examined” all the evidence led by the
prosecution and has given cogent and convincing
reasons, the High Court is in complete agreement with
the view taken by the Additional Sessions Judge. It is
only with this narration of facts, the Division Bench
dismissed the appeal.
10) In our opinion, keeping in view the powers of the
Appellate Court under Section 386 (b) of the Code of
Criminal Procedure, 1973, the Division Bench should
have examined the evidence of each prosecution
witnesses on issues arising in the case and the same
4
should have been examined in the light of the
challenge made by the accused in appeal and then a
finding should have been recorded either of affirmation
or modification or reversal, as the case may be.
11) There is neither any reference to any evidence,
nor its appreciation and nor there is any discussion
much less finding in the impugned order.
12) The High Court, in our opinion, is empowered in
its appellate jurisdiction to examine the issues of facts
and law while examining the legality and the
correctness of the impugned order. It is equally
incumbent upon the Division Bench to deal with
issues urged and then record its findings one way or
the other keeping in view the law laid down by this
Court which governs the issues.
5
13) We, therefore, find ourselves unable to concur
with such disposal of the appeal and feel inclined to
set aside the impugned order and remand the case to
the Division Bench of the High Court with a request to
decide the appeal afresh on merits in accordance with
law.
14) Having formed an opinion to remand the case, we
do not consider it proper to go into the merits of the
case. We, therefore, leave all the issues open to be
decided by the Division Bench on merits, in
accordance with law uninfluenced by our
observations.
6
15) In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. Impugned order
is set aside. We request the High Court to dispose of
the appeal as expeditiously as possible preferably
within six months.
16) Pending application(s), if any, stand(s) disposed
of.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[INDU MALHOTRA]
New Delhi;
December 03, 2018
7
