Bachan Singh Etc. Vs. State of Punjab - Court Judgment

Excerpt:
against their conviction and sentence passed by the sessions judge, gurdaspur, the appellants preferred an appeal to the high court. the state filed an appeal for their conviction and sentence under section 302 i.p.c. a revision petition was also filed under section 401 crl. p.c. for enhancement of the sentence of imprisonment and fine "to meet the ends of justice". though the high court made an express order on december 9, 1974 that the revision petition would be heard along with the criminal appeal, the high court by its impugned judgment dated january 3, 1978, dismissed the appeal filed by the accused, but enhanced the sentence of bachan singh, gurnam singh and chanan singh accused under section 304 part i read with section 149 i.p.c. to rigorous imprisonment for life and of accused ravail singh and vir singh under the same section to rigorous imprisonment for 10 years. while making that order, the high court observed that the state appeal "for enhancement of punishment" was partly accepted, without reference to the revision petition. hence the petition for special leave under article 136 of the constitution on the ground that the high court committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub-section (3) of section 377 of the code of criminal procedure. dismissing the petition the court, ^ held: 1. the revision petition under section 401 crl. p.c. for enhancement of the sentence was maintainable as it was not permissible for the revision petitioner to file an appeal under section 377. the high court effectively disposed of both the appeals and the revision petition even though there was an inadvertent mistake in not making a reference to the revision petition in the judgment. [647 f- g, 648 b] 2. the opportunity for pleading for acquittal was amply furnished to the accused at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for pleading for their acquittal or the reduction of the sentence. that, in fact, was the subject matter of their appeal. the fact that the appeal filed by the state 5-625sci/79 646 against the acquittal of the accused under section 302 i.p.c. was heard along with their appeal against conviction and sentence, itself furnished an opportunity to show cause against the enhancement of the sentence. [648 c-d] 3. (a) in the petition filed under section 401 crl. p.c. for the exercise of the high court's power of revision, it was permissible for it to exercise the power of a court of appeal under section 386 for enhancement of the sentence. [648 e-f] (b) it was also permissible for the high court under section 397 crl. p.c., to call for and examine the record of the proceedings before the trial court for purpose of satisfying itself as to the correctness, legality or "propriety" of any finding, "sentence" or order recorded or passed by that inferior court. the high court's power of revision under section 401 crl.p.c. in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge includes the power conferred on a court of appeal under section 386 to enhance or reduce the sentence. so when the record of the case was before the high court in connection with the two appeals and the revision petition there was nothing to prevent the high court from invoking its power under section 397 read with 401 crl. p.c. and to make an order for the enhancement of the sentence. [648 f-h] criminal appellate jurisdiction: special leave petition(crl.) no. 1383 of 1978. from the judgment and order dated 3-1-1978 of thepunjab and haryana high court in crl. a. no. 1039/74. k. l. jogga and l. n. gupta for the petitioner. hardev singh for the respondent. the order of the court was delivered by shinghal, j.-we have heard learned counsel for theparties at length. accused bachan singh, gurnam singh and chanan singhwere convicted by the sessions judge of gurdaspur of anoffence under section 304 part i read with section 149i.p.c. and were sentenced to rigorous imprisonment for 10years and a fine of rs. 1000/-. they were also convicted ofan offence under section 148 i.p.c. and sentenced torigorous imprisonment for 2 years. the remaining two accusedravail singh and vir singh were convicted of an offenceunder section 304 part i read with section 149 i.p.c., butthey were sentenced to rigorous imprisonment for 5 years anda fine of rs. 500/-. further, they were convicted of anoffence under section 147 i.p.c. and were sentenced torigorous imprisonment for 1 year. an appeal was filed by the accused against theirconviction and sentence; and the state filed an appeal fortheir conviction and sentence under section 302 i.p.c. arevision petition was filed under647section 401 crl. p.c. for enhancement of the sentence ofimprisonment and fine "to meet the ends of justice". thehigh court of punjab and haryana made an express order ondecember 9, 1974 that the revision petition would be heardalongwith the criminal appeal (no. 1039 of 1974) filed bythe accused. by its impugned judgment dated january 3, 1978, thehigh court dismissed the appeal which was filed by theaccused, but enhanced the sentence of bachan singh, gurnamsingh and chanan singh accused under section 304 part i readwith section 149 i.p.c. to rigorous imprisonment for lifeand of accused ravail singh and vir singh under the samesection to rigorous imprisonment for 10 years. while makingthat order, the high court observed that the state appeal"for enhancement of punishment" was "partly accepted". thatis why all the five accused have applied to this court forspecial leave under article 136 of the constitution. it has been argued by learned counsel for the accusedthat the high court committed an error of law in enhancingthe sentence of the accused without giving them a reasonableopportunity of showing cause against such enhancement andwithout allowing them to plead for their acquittal or forreduction of the sentence as contemplated by sub-section (3)of section 377 of the code of criminal procedure. it appears to us, however, that as the state governmentdid not file an appeal against the sentence under sub-section (1) of section 377 cr.p.c, and as it is not disputedbefore us that its appeal was directed against the acquittalof the accused for the offence under section 302 i.p.c.,there is no justification for the argument that the highcourt committed an illegality in not complying with therequirement of sub-section (3) of that section for givingthe opportunity to the accused of showing cause against theenhancement of the sentence or of pleading for theiracquittal or for reduction of the sentence. as has been stated, a petition was filed under section401 cr.p.c. for enhancement of the sentence, and it wasclearly maintainable as it was not permissible for therevision petitioner to file an appeal under section 377. itwill be recalled that the high court made an express orderon december 9, 1974, for the hearing of the revisionpetition alongwith the appeal which had been filed by theaccused. the fact therefore remains that the high court hadbefore it the above mentioned appeals which had been filedby the accused and the state, and the revision petitionunder section 401 cr.p.c. for enhancement of the sentence.while that court dismissed the appeal of the648accused, and allowed the appeal of the state in part, itforgot to make a reference to the revision petition whiledrawing up the operative part of its order. that was aninadvertent mistake for, after reading the impugned judgmentof the high court, we have no doubt that it effectivelydisposed of both the appeals and the revision petition eventhough the wordings of the judgment in that respect were notquite appropriate. but, even otherwise, there is no merit in the grievanceof the accused that they were not given the opportunity ofshowing cause against the enhancement of the sentence or toplead for their acquittal or for reduction of the sentence.the opportunity for pleading for acquittal was amplyfurnished at the hearing of their own appeal against theirconviction, and the same appeal furnished them the necessaryopportunity for pleading for the reduction of the sentence.that in fact was the subject matter of their appeal. it is not disputed before us that the high court heardthe state appeal against the acquittal of the accused,alongwith the appeal which was filed by the accused, andthat furnished further opportunity to the accused to pleadfor their acquittal, or reduction of sentence, or to showcause against the enhancement of the sentence. there is thusno force in the argument to the contrary. it has to beappreciated that in respect of the petition which was filedunder section 401 cr.p.c. for the exercise of the highcourt's powers of revision, it was permissible for it toexercise the power of a court of appeal under section 386for enhancement of the sentence, and if that had been done,there is no justification for the argument that theenhancement was illegal. there is another reason for this view. it waspermissible for the high court under section 397 cr.p.c. tocall for and examine the record of the proceeding before thetrial court for the purpose of satisfying itself as to thecorrectness, legality or "propriety" of any finding,"sentence" or order, recorded or passed by that inferiorcourt. the high court's power of revision in the case of anyproceeding the record of which has been called for by it orwhich otherwise comes to its knowledge, has been stated insection 401 cr.p.c. to which reference has been made above.that includes the power conferred on a court of appeal undersection 386 to enhance or reduce the sentence. so when therecord of the case was before the high court in connectionwith the two appeals and the revision petition referred toabove, there was nothing to prevent the high court frominvoking its powers under section 397 read with section 401cr.p.c. and to make an order for the enhancement of thesentence.649 there is thus no force in the argument to the contrary. all the same, we gave an opportunity to the learnedcounsel for the accused to advance his arguments on questionof sentence and all that he was able to argue was that asthe accused had undergone a portion of the sentence and, asthe offence was committed in 1972, the high court was notjustified in enhancing the sentence. as is obvious, boththese arguments are untenable and inconsequential because ofthe concurrent findings of the trial court and the highcourt that the accused emerged from the house of accusedbachan singh as soon as sarup singh (deceased) reached theplace of occurrence, shouted that he should be taught alesson for getting liquor recovered from them and beat himwith their respective weapons. it has been found furtherthat while accused vir singh caught hold of the hair of thedeceased and ravail singh caught hold of his legs and felledhim on the ground, gurnam singh, who was armed with a datar,dealt belows on his right knee while chanan singh gave akirpan blow on his left hand, and then accused gurnam singhgave a blow on his right knee while chanan singh gave akirpan blow on his left hand and he, gurnam singh and bachansingh dealt further blows on his left leg near the knee, asa result of which the left leg was completely severed fromthe body. it has also been concurrently found that theaccused took away the chopped off leg of the deceased afterwrapping it in his turban, and that he succumbed to theinjuries soon after. the facts and the circumstances whichhave thus been established by the evidence of pal singhp.w.4, and nishan singh p.w.5, on which reliance has beenplaced by both the courts, justify the view taken by thehigh court that the accused deserved the sentence awarded tothem by it. learned counsel for the accused tried to argue that theconviction of the accused was not justified on the merits,and took us through the finding in regard to the motive forthe offence, the nature of the medical evidence, the plea ofself defence taken by accused bachan singh and therelationship of eye-witnesses pal singh p.w.4 and nishansingh p.w.5 with the deceased. apart from the fact thatthere was no occasion for us to consider those arguments, wehave no hesitation in saying that they are without merit. in the view we have taken, the petition for specialleave is dismissed.v.d.k. petition dismissed.650

Judgment:
CRIMINAL APPELLATE JURISDICTION: Special Leave Petition

(Crl.) No. 1383 of 1978.

From the Judgment and Order dated 3-1-1978 of the

Punjab and Haryana High Court in Crl. A. No. 1039/74.

K. L. Jogga and L. N. Gupta for the Petitioner.

Hardev Singh for the Respondent. The Order of the Court

was delivered by

SHINGHAL, J.-We have heard learned counsel for the

parties at length.

Accused Bachan Singh, Gurnam Singh and Chanan Singh

were convicted by the Sessions Judge of Gurdaspur of an

offence under section 304 Part I read with section 149

I.P.C. and were sentenced to rigorous imprisonment for 10

years and a fine of Rs. 1000/-. They were also convicted of

an offence under section 148 I.P.C. and sentenced to

rigorous imprisonment for 2 years. The remaining two accused

Ravail Singh and Vir Singh were convicted of an offence

under section 304 Part I read with section 149 I.P.C., but

they were sentenced to rigorous imprisonment for 5 years and

a fine of Rs. 500/-. Further, they were convicted of an

offence under section 147 I.P.C. and were sentenced to

rigorous imprisonment for 1 year.

An appeal was filed by the accused against their

conviction and sentence; and the State filed an appeal for

their conviction and sentence under section 302 I.P.C. A

revision petition was filed under

647

section 401 Crl. P.C. for enhancement of the sentence of

imprisonment and fine "to meet the ends of justice". The

High Court of Punjab and Haryana made an express order on

December 9, 1974 that the revision petition would be heard

alongwith the criminal appeal (No. 1039 of 1974) filed by

the accused.

By its impugned Judgment dated January 3, 1978, the

High Court dismissed the appeal which was filed by the

accused, but enhanced the sentence of Bachan Singh, Gurnam

Singh and Chanan Singh accused under section 304 Part I read

with section 149 I.P.C. to rigorous imprisonment for life

and of accused Ravail Singh and Vir Singh under the same

section to rigorous imprisonment for 10 years. While making

that order, the High Court observed that the State appeal

"for enhancement of punishment" was "partly accepted". That

is why all the five accused have applied to this Court for

special leave under article 136 of the Constitution.

It has been argued by learned counsel for the accused

that the High Court committed an error of law in enhancing

the sentence of the accused without giving them a reasonable

opportunity of showing cause against such enhancement and

without allowing them to plead for their acquittal or for

reduction of the sentence as contemplated by sub-section (3)

of section 377 of the Code of Criminal Procedure.

It appears to us, however, that as the State Government

did not file an appeal against the sentence under sub-

section (1) of section 377 Cr.P.C, and as it is not disputed

before us that its appeal was directed against the acquittal

of the accused for the offence under section 302 I.P.C.,

there is no justification for the argument that the High

Court committed an illegality in not complying with the

requirement of sub-section (3) of that section for giving

the opportunity to the accused of showing cause against the

enhancement of the sentence or of pleading for their

acquittal or for reduction of the sentence.

As has been stated, a petition was filed under section

401 Cr.P.C. for enhancement of the sentence, and it was

clearly maintainable as it was not permissible for the

revision petitioner to file an appeal under section 377. It

will be recalled that the High Court made an express order

on December 9, 1974, for the hearing of the revision

petition alongwith the appeal which had been filed by the

accused.

The fact therefore remains that the High Court had

before it the above mentioned appeals which had been filed

by the accused and the State, and the revision petition

under section 401 Cr.P.C. for enhancement of the sentence.

While that court dismissed the appeal of the

648

accused, and allowed the appeal of the State in part, it

forgot to make a reference to the revision petition while

drawing up the operative part of its order. That was an

inadvertent mistake for, after reading the impugned judgment

of the High Court, we have no doubt that it effectively

disposed of both the appeals and the revision petition even

though the wordings of the judgment in that respect were not

quite appropriate.

But, even otherwise, there is no merit in the grievance

of the accused that they were not given the opportunity of

showing cause against the enhancement of the sentence or to

plead for their acquittal or for reduction of the sentence.

The opportunity for pleading for acquittal was amply

furnished at the hearing of their own appeal against their

conviction, and the same appeal furnished them the necessary

opportunity for pleading for the reduction of the sentence.

That in fact was the subject matter of their appeal.

It is not disputed before us that the High Court heard

the State appeal against the acquittal of the accused,

alongwith the appeal which was filed by the accused, and

that furnished further opportunity to the accused to plead

for their acquittal, or reduction of sentence, or to show

cause against the enhancement of the sentence. There is thus

no force in the argument to the contrary. It has to be

appreciated that in respect of the petition which was filed

under section 401 Cr.P.C. for the exercise of the High

Court's powers of revision, it was permissible for it to

exercise the power of a Court of Appeal under section 386

for enhancement of the sentence, and if that had been done,

there is no justification for the argument that the

enhancement was illegal.

There is another reason for this view. It was

permissible for the High Court under section 397 Cr.P.C. to

call for and examine the record of the proceeding before the

trial court for the purpose of satisfying itself as to the

correctness, legality or "propriety" of any finding,

"sentence" or order, recorded or passed by that inferior

court. The High Court's power of revision in the case of any

proceeding the record of which has been called for by it or

which otherwise comes to its knowledge, has been stated in

section 401 Cr.P.C. to which reference has been made above.

That includes the power conferred on a Court of Appeal under

section 386 to enhance or reduce the sentence. So when the

record of the case was before the High Court in connection

with the two appeals and the revision petition referred to

above, there was nothing to prevent the High Court from

invoking its powers under section 397 read with section 401

Cr.P.C. and to make an order for the enhancement of the

sentence.

649

There is thus no force in the argument to the contrary.

All the same, we gave an opportunity to the learned

counsel for the accused to advance his arguments on question

of sentence and all that he was able to argue was that as

the accused had undergone a portion of the sentence and, as

the offence was committed in 1972, the High Court was not

justified in enhancing the sentence. As is obvious, both

these arguments are untenable and inconsequential because of

the concurrent findings of the trial court and the High

Court that the accused emerged from the house of accused

Bachan Singh as soon as Sarup Singh (deceased) reached the

place of occurrence, shouted that he should be taught a

lesson for getting liquor recovered from them and beat him

with their respective weapons. It has been found further

that while accused Vir Singh caught hold of the hair of the

deceased and Ravail Singh caught hold of his legs and felled

him on the ground, Gurnam Singh, who was armed with a datar,

dealt belows on his right knee while Chanan Singh gave a

kirpan blow on his left hand, and then accused Gurnam Singh

gave a blow on his right knee while Chanan Singh gave a

kirpan blow on his left hand and he, Gurnam Singh and Bachan

Singh dealt further blows on his left leg near the knee, as

a result of which the left leg was completely severed from

the body. It has also been concurrently found that the

accused took away the chopped off leg of the deceased after

wrapping it in his turban, and that he succumbed to the

injuries soon after. The facts and the circumstances which

have thus been established by the evidence of Pal Singh

P.W.4, and Nishan Singh P.W.5, on which reliance has been

placed by both the courts, justify the view taken by the

High Court that the accused deserved the sentence awarded to

them by it.

Learned counsel for the accused tried to argue that the

conviction of the accused was not justified on the merits,

and took us through the finding in regard to the motive for

the offence, the nature of the medical evidence, the plea of

self defence taken by accused Bachan Singh and the

relationship of eye-witnesses Pal Singh P.W.4 and Nishan

Singh P.W.5 with the deceased. Apart from the fact that

there was no occasion for us to consider those arguments, we

have no hesitation in saying that they are without merit.

In the view we have taken, the petition for special

leave is dismissed.

V.D.K. Petition dismissed.

650