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1993 DIGILAW 489 (KER)

Velayudhan v. State of Kerala

1993-10-22

K.T.THOMAS

body1993
Judgment :- In this revision, I have no other alternative than to quash the appellate judgment since the criminal appeal has been disposed of by the learned Sessions Judge in a supercilious manner. That apart, learned Sessions judge has not passed the judgment in accordance with law. 2. Petitioner herein was accused in a case before a judicial magistrate of first class for offences under Ss.447 and 324 of the Indian Penal Code. Trial magistrate convicted him of the offences and sentenced him to imprisonment and fine. Petitioner filed an appeal before Sessions Court, but learned Sessions Judge dismissed the appeal confirming the conviction and sentence. This revision is in challenge of the said judgment. 3. Prosecution case is that petitioner had trespassed into the property of P.W.I (a lady) on 12-5-90 and beat her with a wooden reaper on her head. One of the plea adopted by the defence is that petitioner did not know the nature of his acts on account of unsoundness of mind. Petitioner examined two witnesses on the defence side as D.Ws.1 and 2. 4. Trial court, after discussing prosecution evidence in extensor, found that petitioner beat P.W.I on the head with a wooden reaper in the manner alleged by the prosecution. Learned magistrate also considered in detail the defence plea based on S.84 of the IPC and declined to uphold the plea. 5. But in appeal, learned Sessions Judge did not consider the defence plea based on S.84 of the IPC. He did not even refer to such a plea. On reading the judgment of the Sessions Court, I felt that learned Sessions Judge might not have conic to know that accused had examined two witnesses on the defence, side. 6. No appellate court can afford to marginalize defence evidence in lotto. It is legally impermissible to sidestep defence evidence at any stage whether it is at original or appellate stage. So, disposal of the appeal without even adverting to defence evidence is not a disposal in accordance with law. It is in a way abdication of appellate functions. 7. In Slieikh Ahamed v. State (AIR 1956 My. 49) Mysore High Court stressed that a court is bound to consider the evidence of the defence witnesses, for what it may be worth, before arriving at a conclusion. It is in a way abdication of appellate functions. 7. In Slieikh Ahamed v. State (AIR 1956 My. 49) Mysore High Court stressed that a court is bound to consider the evidence of the defence witnesses, for what it may be worth, before arriving at a conclusion. "The conspicuous omission to refer to the evidence 'of the defence witnesses in the course of the judgment shows clearly that the magistrate did not actually apply himself to the facts of the case and form an explicit opinion of his own on the question of the fact involved in the case as required under the law". The said observations were quoted by F Chalid, J. (as he then was) in Krishnankutty v. State (1976 KLT 153). In that case a trial court considered the entire facts including defence evidence and convicted the accused. But the Sessions Judge in appeal failed to consider defence evidence at all and the conviction and sentence were confirmed solely on prosecution evidence. Judgment of the Sessions Court was consequently set aside by this Court in the said decision. The same course has to be adopted in this case also. 8. Further, learned Sessions Judge did not pass the judgment in accordance with law for yet another reason. Chapter XXVII of the Code of Criminal Procedure (for short 'the Code') contains provisions regarding "the judgment". S.354 of the Code which falls within the said Chapter requires, inter alia, that every judgment "shall contain the point or points for determination, the decision thereon and the reasons for the decision". S.387 of the Code directs that the rules contained in Chapter XXVII as to the judgment of a court of original jurisdiction shall apply to the judgment in appeal of a court of session or chief judicial magistrate as far as may be practicable. This means, except judgments, rendered by the Supreme Court or the High Court, the rules in S.354 of the Code shall be complied with while rendering judgments in appeal also. 9. It is thus a statutory requirement that the judgment shall contain "points for determination" and reasons for the decision on each point. The requirement has a salutary purpose. No judgment can afford to bypass or overlook important points involved in the case. Formulation of all necessary points provides the advantage that no question involved in the case is missed. 9. It is thus a statutory requirement that the judgment shall contain "points for determination" and reasons for the decision on each point. The requirement has a salutary purpose. No judgment can afford to bypass or overlook important points involved in the case. Formulation of all necessary points provides the advantage that no question involved in the case is missed. If an all pervasive point like "whether the accused is guilty of any offence" or "whether prosecution has proved the case beyond reasonable doubt" is framed, it does not serve any purpose. Such omnibus point would not satisfy the statutory requirement embodied in S.354 of the Code. Of course, each point should not be unduly lengthy. Some sort of judicial artistry may be needed in framing the points. 10. Another rule is that as far as possible, each point must be considered separately. Sometimes discussion under one point may overlap into the other. It would then be convenient for the court to have common discussion under more than one point. Except in such circumstances, it is advisable to discuss each point separately. This would, apart from complying with the legal requirement, be helpful for the reader of the judgment to understand and follow the reasons better and it would help the superior court to conveniently locate from the judgment the discussion on a particular aspect. 11. In the present case, learned Sessions Judge has not formulated a single point. He should no t have bypassed the statutory requirement in a wayward manner. Way back in 1960, a Division Bench of this Court has reminded the subordinate judiciary (in Challeppan Nair v. State -1960 KLT 965) that "legislature had a purpose in enacting mandatory provisions and trial judges are not at liberty to dispense with the salutary provisions of the Code in writing judgments". Five years later, this Court has highlighted the greater responsibility of appellate courts than the trial courts in writing judgments in conformity with the mandatory provisions of law. The reason pointed out is that as against the trial court judgment the party has a remedy by way of appeal before a superior court where such questions of fact as well as of law can be canvassed and considered. (Vide Raman Pillay v. State of Kerala -1965 KLT 20). The reason pointed out is that as against the trial court judgment the party has a remedy by way of appeal before a superior court where such questions of fact as well as of law can be canvassed and considered. (Vide Raman Pillay v. State of Kerala -1965 KLT 20). I quash the impugned judgment and send the case back to the Sessions Court for disposal of the appeal afresh in accordance with law and in the light of the observations made above.