MAHADEV MOPTA v. STATE — 1974 DIGILAW 78 (GUJ)

J. M. SHETH, J. ( 1 ) THIS is a revision petition filed by original accused Nos. 1 to 4 against the order of conviction and sentences passed against them in Criminal Appeal No. 36 of 1972 by the learned Sessions Judge Ahmedabad (Rural) at Narol. ( 2 ) ALL the four petitioners were tried by the learned Judicial Magistrate First Class Viramgam for offences punishable under secs. 435 447 323 and 324 of the Indian Penal Code. That case was registered as Criminal Case No. 259 of 1972. The learned Magistrate convicted them of the offences punishable under secs. 447 435 324 and 323 all read with sec. 114 of the Indian Penal Code. Each of them was sentenced to suffer two months rigorous imprisonment and to pay a fine of Rs. 200. 00 and in default of payment of fine to undergo 15 days further rigorous imprisonment for the offence punishable under sec. 447 read with sec. 114 of the Indian Penal Code. Each of them was sentenced to suffer one years rigorous imprisonment and to pay a fine of Rs. 300. 00 and in default of payment of fine to undergo two months further rigorous imprisonment for the offence punishable under sec. 435 read with sec. 114 of the Indian Penal Code. Each of them was sentenced to suffer six months rigorous imprisonment and to pay a fine of Rs. 200. 00 and in default of payment of fine to undergo one months further rigorous imprisonment for the offence punishable under sec. 324 read with sec. 114 of the Indian Penal Code. Each of them was also sentenced to suffer two months rigorous imprisonment and to pay a fine of Rs. 100/and in default of payment of fine to undergo 15 days further rigorous imprisonment for the offence punishable under sec. 323 read with sec. 114 of the Indian Penal Code. All the substantive sentences were ordered to run concurrently. ( 3 ) IN the appeal that was filed by the petitioners in the Sessions Court the learned Sessions Judge recorded a finding that the order of conviction under sec. 114 of the Indian Penal Code passed against the petitioners was not proper. He recorded a finding that original accused Nos. 1 and 3 i. e. petitioners Nos. 1 and 3 are guiity of offence punishable under sec. 114 of the Indian Penal Code passed against the petitioners was not proper. He recorded a finding that original accused Nos. 1 and 3 i. e. petitioners Nos. 1 and 3 are guiity of offence punishable under sec. 323 of the Indian Penal Code and original accused Nos. 2 and 4 i. e. petitioners Nos. 2 and 4 are guilty of offence punishable under sec. 324 of the Indian Penal Code. He therefore partly allowed the appeal and altered the order of conviction and sentences passed against the petitioners and convicted petitioners Nos. 1 and 3 of the offence punishable under sec. 323 of the Indian Penal Code for causing hurt to complainant Mahadev Haribhai and witness Ganda Hira and sentenced each of them to suffer one months rigorous imprisonment and to pay a fine Rs. 100. 00 and in default of payment of fine to undergo 7 days further rigorous imprisonment. He convicted petitioners Nos. 2 and 4 of the offence punishable under sec. 324 of the Indian Penal Code for having caused injuries with a sharp cutting instrument like a Dharia to the complainant and sentenced each of them to suffer three months rigorous imprisonment and to pay a fine of Rs. 200. 00 and in default of payment of fine to undergo 15 days further rigorous imprisonment. Their conviction under sec. 447 and 435 both read with sec. 114 of the Indian Penal Code was set aside. They were ordered to surrender to bail and serve out their sentences. ( 4 ) MR. Maganbhai M. Desai appearing for the petitioners has contended that the order of conviction and sentences recorded against the petitioners cannot be sustained in law as these four petitioners were charged for the substantive offences under secs. 435 447 324 and 323 of the Indian Penal Code. They were not charged for the offence under sec. 114 of the Indian Penal Code or for the aforesaid offences read with sec. 114 of the Indian Penal Code. At the conclusion of the trial they have been convicted not for the aforesaid substantive offences but for the aforesaid offences read with sec. 114 of the Indian Penal Code and sentences awarded to them were also for the aforesaid offences read with sec. 114 of the Indian Penal Code. It would necessarily mean submitted Mr. At the conclusion of the trial they have been convicted not for the aforesaid substantive offences but for the aforesaid offences read with sec. 114 of the Indian Penal Code and sentences awarded to them were also for the aforesaid offences read with sec. 114 of the Indian Penal Code. It would necessarily mean submitted Mr. Desai that the petitioners were acquitted of the substantive offences punishable under sec. 435 447 324 and 323 of the Indian Penal Code. The State had not filed any acquittal appeal admittedly submitted Mr. Desai against that implied order of acquittal and such an appeal admittedly lies to the High Court and not to the Sessions Court. it is only the petitioners who were convicted of the offences punishable under sec. 435 447 324 and 323 all read with sec. 114 of the Indian Penal Code who had filed appeal against that order of conviction and sentences in the Sessions Court Ahmedabad (Rural) at Narol. The learned Sessions Judge submitted Mr. Desai has reached the conclusion that there having been no charge for offences punishable under secs. 435 447 323 and 324 all read with sec. 114 of Indian Penal Code the order of conviction and sentences passed by the learned trial Magistrate in that behalf was not proper. Mr. Desai has therefore submitted that the learned Sessions Judge had no jurisdiction to convert the order of acquittal into the order of conviction by sentencing petitioners Nos. 1 and 3 for the substantive offence punishable under sec. 323 of the Indian Penal Code and petitioners Nos. 2 and 4 for the substantive offence punishable under sec. 324 of the Indian Penal Code. He has exceeded his jurisdiction in altering the finding in that behalf. ( 5 ) IN support of his arguments Mr. Desai has invited my attention to two decisions. The first decision to which he has invited my attention is the decision of the Bombay High Court in Emperor v. Kashia Antoo 10 Bombay Law Reporter 76. It is observed by Justice Russell:a previous conviction of an accused for an offence cannot be taken into consideration at a subsequent conviction for abetment for the purposes of enhancing punishment under sec. 75 of the Indian Penal Code. THE effect of sec. It is observed by Justice Russell:a previous conviction of an accused for an offence cannot be taken into consideration at a subsequent conviction for abetment for the purposes of enhancing punishment under sec. 75 of the Indian Penal Code. THE effect of sec. 114 of the Indian Penal Code is that if a man is present at a commission of an offence he is to be deemed to have committed it not that he has committed it. I am in respectful agreement with these observations made by Russell J. These observations would also mean that a conviction for a particular offence read with or conviction for the offence under sec. 114 of the Indian Penal Code would not mean that he has committed a particular substantive offence. It would only mean that he will be deemed to have committed an offence and that would be obviously for the purpose of sentence. A legal fiction is introduced and such a person will become liable to punishment just like the principal offender. That decision therefore relied upon by Mr. Desai is not of any assistance for the purpose of deciding the question that is posed before me. ( 6 ) MR. Desai has laid considerable emphasis in support of his submission on the decision of the Supreme Court in State of Andhra Pradesh v. Thadi Narayana A. I. R. 1962 Supreme Court 240. To understand and appreciate the rival contentions urged at the Bar and to understand the real position of law it is necessary to refer to this case in a little detail. In that case the accused was charged in the trial Court for the offence punishable under secs. 302 and 392 of the Indian Penal Code. At the conclusion of the trial the trial Judge acquitted her of the said offences observing that the charges against her under secs. 302 and 392 of the Indian Penal Code had not been proved beyond reasonable doubt and so he acquitted her of the said offences. He however held that the respondent (accused was shown to have committed an offence under sec. 411 of the Indian Penal Code and so he convicted her of the said offence and sentenced her to undergo rigorous imprisonment for a period of two years. Against that order of conviction she preferred a jail appeal in the High Court of Andhra Pradesh. 411 of the Indian Penal Code and so he convicted her of the said offence and sentenced her to undergo rigorous imprisonment for a period of two years. Against that order of conviction she preferred a jail appeal in the High Court of Andhra Pradesh. The High Court of Andhra Pradesh expressed its conclusion that it was satisfied that gross miscarriage of justice had resulted in the case and the only way to rectify this is to order the retrial of the case on the original charges under secs. 302 and 392 of the Indian Penal Code so that the accused may be properly tried thereon and if found guilty convicted for the offence or offences proved by evidence to have been committed by her. In the result the conviction and sentence of the accused under section 411 were set aside and case was remanded to the trial Court for retrial on the charges already framed against her. It is thus evident that in that case in an appeal filed by the convict for the offence under sec. 411 re-trial was ordered and the re-trial was for the offences that may be established including the offences committed by her under secs. 302 and 392 of the Indian Penal Code for which as order of acquittal was passed by the trial Court. When the matter was taken up by the trial Court the accused took an objection that she could not be again tried for the offences punishable under secs. 302 and 392 of the Indian Penal Code for which she was already acquitted. The trial Court negatived that contention observing that it had no power to go beyond the directions given by the High Court. The matter was ultimately taken to the High Court and it was heard by the Full Bench of the High Court and decided in favour of the accused and the matter was ultimately taken to the Supreme Court against that decision of the High Court. The Supreme Court at pages 241 and 242 refers to two questions framed for determination by the Full Bench of the Andhra Pradesh High Court: (1) Where an accused is tried by a Sessions Court on charges of murder and robbery and the Sessions Court acquits the accused of those charges and convicts her only of an offence under sec. The Supreme Court at pages 241 and 242 refers to two questions framed for determination by the Full Bench of the Andhra Pradesh High Court: (1) Where an accused is tried by a Sessions Court on charges of murder and robbery and the Sessions Court acquits the accused of those charges and convicts her only of an offence under sec. 411 Penal Code and the accused appeals to the High Court against the conviction and sentence but the State Government does not appeal against the acquittal of the accused on charges of murder and robbery is it open to the High Court to set aside the conviction and sentence under sec. 411 Penal Code and order the accused to be retried on the charges of murder and robbery ? (2) When in pursuance the order of the High Court the Sessions Court again frames charges under secs. 302 and 392 Penal Code against the accused is it or is it not open to the accused to plead the statutory bar of AUTREFOIS ACQUIT under sec. 403 Cr. P. C. ?the answer given by the Full Bench to the first question was that except in exercise of the revisional powers under sec. 439 of the Code of Criminal Procedure subject to the limitations prescribed therein it was not open to the High Court to order a retrial on the charges on which the accused was acquitted by the trial Court in an appeal by the accused against his conviction though it was empowered to reverse the conviction and order a retrial on that charge alone. On the second question the Full Bench held that it was open to the accused to plead the bar of autrefois acquit under sec. 403 notwithstanding the order of the High Court unless there is an adjudication on the acquittal by the High Court either under sec. 413 (1) (a) or sec. 439 of the Code of Criminal Procedure. As a result of these answers the revisional application preferred by the respondent (accused) was allowed her plea under sec. 403 was upheld and it was ordered that the retrial of the respodent (accused) for the offence under secs. 302 and 392 of the Indian Penal Code could not be proceeded with. The State of Andhra Pradesh therefore carried the matter to the Supreme Court. ( 7 ) AFTER referring to the relevant provisions of sec. 403 was upheld and it was ordered that the retrial of the respodent (accused) for the offence under secs. 302 and 392 of the Indian Penal Code could not be proceeded with. The State of Andhra Pradesh therefore carried the matter to the Supreme Court. ( 7 ) AFTER referring to the relevant provisions of sec. 423 of the Criminal Procedure Code 1898 the Supreme (Court has at page 243 observed:in our opinion sec. 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. In para 9 it is observed: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 sec. 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 sec. 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 sec. 417 of the Code and sec. An order of acquittal passed in favour of an accused person can be challenged by an appeal as provided by sec. 417 of the Code and sec. 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 sec. 417 and if no action is taken by the High Court under sec. 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. It is further observed in para 10:we are therefore inclined to hold that just as the Court of Sessions is not entitled to alter the finding of acquittal in exercising its powers under sec. 423 (1) (b) (2) 50 is the High Court not entitled to do it. In other words the expression alter the finding has only one meaning and that is alter the finding of conviction and not the finding of acquittal. 423 (1) (b) (2) 50 is the High Court not entitled to do it. In other words the expression alter the finding has only one meaning and that is alter the finding of conviction and not the finding of acquittal. In para 12 it is observed:as a matter of construction the words the finding in the expression alter the finding must mean the finding of conviction because the clause begins with in an appeal from a conviction and it is obvious that read in the context of the opening words of the clause the finding must mean the finding of conviction and no other. ( 8 ) MR. Desai has laid considerable emphasis on the observations made by the Supreme Court in this decision at page 245 in para 15. Those observations are:in this connection we ought to deal with another argument which is sometimes pressed into service in support of the wider construction of the clause alter the finding. It is said that the provisions of sec. 439 apply to cases where there is a complete and express order of acquittal whereas sec. 423 (1) (b) (2) covers cases of implied and partial acquittal. It is also urged that whereas there is a specific provision made in sec. 439 (4) by which the High Court is precluded from converting a finding of acquittal into one of conviction there is no such limitation in sec. 423. Both these arguments do not appear to us to be well-founded. In regard to the argument of implied acquittal being open to review by the High Court under sec. 423 (1) (b) (2) it would be enough to refer to a decision of the Privy Council where this argument has been rejected. In Kishan Singh v. Emperor 55 Indian Appeals 390: (AIR 1928 P. C. 254) the appellant had been tried by a Sessions Judge under sec. 302 on a charge of murder. He was convicted under sec. 304 of culpable homicide not amounting to murder. This conviction was recorded in the light of the provisions of sec. 238 of the Code. For the offence under sec. 304 he was sentenced to five years rigorous imprisonment. While convicting the appellant under sec. 304 the trial Court did not record a specific order of acquittal for the offence under sec. 302. This conviction was recorded in the light of the provisions of sec. 238 of the Code. For the offence under sec. 304 he was sentenced to five years rigorous imprisonment. While convicting the appellant under sec. 304 the trial Court did not record a specific order of acquittal for the offence under sec. 302. The State Government did not appeal but applied for revision on the ground that the appellant should have been convicted for murder and that the sentence was inadequate. The High Court thereupon convicted the appellant of murder and sentenced him to death. This order of conviction and sentence was successfully challenged by the appellant before the Privy Council. The Privy Council held that the finding at the trial ought to be regarded as of acquittal on the charge of murder and that consequently sec. 439 (4) of the Code precluded the High Court from having jurisdiction upon revision to convict on that charge. After quoting the observations made by Their Lordships of the Privy Council the Supreme Court has observed:it would thus be clear that any attempt to confine the operation of sec. 439 (4) to cases of the so-called complete acquittal cannot be entertained; and so it would be idle to suggest that sec. 423 (1) (b) (2)covers cases of implied or partial acquittal and sec. 439 deals with cases of express and complete acquittal. In setting aside the order of conviction for the offence of murder imposed by the High Court on the appellant the Privy Council observed that the High Court had acted without jurisdiction and so it could not accept the plea that no prejudice had thereby been caused to the Appellant. This case therefore clearly establishes that in exercising the powers conferred on it by sec. 423 (1) (b) the High Court cannot convert acquittal into conviction; that can be done only by adopting the procedure prescribed in sec. 439 of the Code. ( 9 ) IT clearly emerges from the aforesaid observations made by the Supreme Court as well as by the Privy Council in the decision referred to therein that even if there is an acquittal for a particular offence by implication or even if it is a case of as order of partial acquittal the High Court or the appellate Court cannot alter that finding of acquittal in an appeal filed by a convict. It cannot also be done by the High Court in exercise of its powers under sec. 439 of the Criminal Procedure Code 1898 ( 10 ) THE real question that is posed before me is whether in the instant case it could be said that the Sessions Court in hearing an appeal filed by the convicts has altered such finding of acquittal. The answer to that question will depend on the question that should be posed whether there is any such order of acquittal passed by the trial Magistrate either express or implied ? ( 11 ) IT is an admitted position that the charge that was framed by the trial Magistrate which is Ex. 17 of the record was only for the substantive offences against each of these four petitioners viz. for the offences punishable under secs. 447 435 324 and 323 of the Indian Penal Code. The judgment of the trial Court is at Ex. 45. In the prosecution story also facts stated were the individual criminal acts committed by each of these petitioners viz. for the substantive offences in question. Points for determination framed by the learned trial Magistrate were as under:1 Whether prosecution proves that the accused had committed mischief by fire of any explosive substance intending to cause or knowing it to be likely that they would cause damage to the agricultural produce ?2 Whether prosecution proves that the accused had committed criminal trespass on the Wada land of the complaint with an intention to commit an offence ?3 Whether prosecution proves that accused Nos. 2 and 4 had voluntarily caused injuries to the complainant with dangerous weapon Danti ?4 Whether prosecution proves that accused Nos. 1 and 3 voluntarily caused injury to the complainant with sticks ?5 Whether prosecution proves that accused Nos. 1 and 3 had voluntarily caused injury to witness Ganda Hira with stick blows ?6 Whether prosecution proves that the accused had aided and abetted one another in committing the above said offence?7 that order ?the findings recorded on those seven points were in the affirmative in respect of points Nos. 1 to 6. and as per final order in respect of point No. 7. Body of the judgment also clearly shows that a clear finding was recorded by the learned trial Magistrate that these four petitioners did those criminal acts viz. substantive offences punishable under secs. 1 to 6. and as per final order in respect of point No. 7. Body of the judgment also clearly shows that a clear finding was recorded by the learned trial Magistrate that these four petitioners did those criminal acts viz. substantive offences punishable under secs. 447 435 324 and 323 of the Indian Penal Code. The learned trial Magistrate in para 8 of this judgment observes:. . HENCE from the present evidence on record I am of the opinion that the prosecution story is proved beyond reasonable doubt and I hold points Nos. 1 2 3 4 5 and 6 is the affirmative. It is thus evident beyond any reasonable doubt that the learned trial Magistrate recorded a clear finding that these petitioners have committed the substantive offences in question. All the individual criminal acts assigned to them were established against them by the prosecution. Points Nos. 1 to 5 were in that behalf. Additional point No. 6 whether prosecution proves that the accused had aided and abetted one another in committing the above said offence ? was also decided in the affirmative. It would only mean that the petitioners would be liable not only for their individual acts but would also be liable for the acts of others in view of the fact that they bad aided and abetted one another in committing the aforesaid offences. If cannot therefore be said that these substantive offences were not established against the petitioners. On the contrary there was a clear cut finding that these petitioners had committed these substantive offences and the further finding recorded was that one had abetted another in committing the aforesaid offences. In the operative part of the order on doubt the learned trial Magistrate has convicted these petitioners for the offences punishable under secs. 447 435 324 and 323 all read with sec. 114 of the Indian Penal Code and also passed the sentence accordingly for those offences. It is merely a slip. What he should have done in view of his findings was to say that he convicts them for the offences punishable under secs. 447 435 324 and 323 as well as sec. 447 435 324 and 323 and read with sec. 114 of the Indian Penal Code. It is merely a slip. What he should have done in view of his findings was to say that he convicts them for the offences punishable under secs. 447 435 324 and 323 as well as sec. 447 435 324 and 323 and read with sec. 114 of the Indian Penal Code. It cannot be said by necessary implication that the petitioners were acquitted of the substantive offences in question and they were merely convicted for the abetment of the said offences. I am in full agreement with the position that if a man is charged under sec. 302 of the Indian Penal Code and he comes to be convicted for a lesser offence viz. offence punishable under sec. 304 of the Indian Penal Code it would necessarily by implication mean that he has been acquitted of the offence punishable under sec. 302 of the Indian Penal Code. If the convict files an appeal against the order of conviction under sec. 304 Indian Penal Code in the absence of an acquittal appeal filed by the State the High Court will not be in a position to convict him of the offence punishable under sec. 302 of the Indian Penal Code. The High Court would be exceeding its jurisdiction in that case. In the instant case there being no such acquittal either express or implied submissions made by Mr. Desai in this behalf cannot be accepted as well founded submissions. It cannot therefore be said in the circumstances of the case that the learned Sessions Judge has exceeded his jurisdiction in convicting petitioners Nos. 1 and 3 for the offence punishable under sec. 323 of the Indian Penal Code and petitioners Nos. 2 and 4 for the offence punishable under sec. 324 of the Indian Penal Code. ( 12 ) THERE is no substance also in the submission made by Mr. Desai that the sentences having been awarded by the learned trial Magistrate for the substantive offences read with sec. 114 of the indian Penal Code no sentence can be awarded to the petitioners for the aforesaid substantive offences established against the petitioners as found by the learned appellate Judge. There is no enhancement of sentence. Sentence awarded can be maintained. In the instant case sentence is reduced. Sentence of Petitioners 1 and 3 reduce to period already undergone. Appeals of Petitioners 2 and 4 dismissed. .