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2003 DIGILAW 700 (KAR)

HASANBA ALIAS HASSINAR v. STATE OF KARNATAKA

2003-08-21

M.S.RAJENDRA PRASAD

body2003
M. S. RAJENDRA PRASAD, J. ( 1 ) THIS Criminal Revision Petition by the accused filed under Section 397 read with S. 401, Cr. P. C. is directed against the judgment dated 23-1-2002 passed in Crl. A. No. 95 /2000 on the file of the II Addl. Sessions Judge, Dakshina Kannada, Mangalore, wherein the learned Sessions Judge had dismissed the appeal preferred by the accused under Section 374, Cr. P. C. , challenging the legality and validity of the judgment dated 24-3-2000 passed in C. C. No. 6033/1999 on the file of the J. M. F. C. III Court, Mangalore, wherein the learned Magistrate had recorded a finding of conviction of the accused-revision petitioner for the offences under Sections 448 and 354 of I. P. C. and awarded the sentence as detailed in the judgment, challenging the legality and propriety of the judgments impugned. ( 2 ) THE Court has heard the arguments of both sides on merits. ( 3 ) SRI Appa Rao, learned counsel for the revision petitioner, strenuously contended that the material on record clearly shows that the judgment of the appellate court is illegal and invalid as the learned Sessions Judge had not at all reappreciated the evidence on record and has merely narrated the evidence on record placed by the prosecution and had recorded his conclusions. Hence, the learned counsel prayed for remanding the case to the learned Sessions Judge for rehearing the same. ( 4 ) ON the contrary, Sri P. M. Nawaz, learned Government Pleader, strenuously contended that the material on record clearly shows that the learned Sessions Judge had considered the case of the parties in the right perspective and had arrived at the right conclusion. There had been virtually reappreciation of the evidence on record by the learned Sessions Judge and there are no merits in the revision petition. ( 5 ) THE Court has carefully gone through the material on record and has given its anxious thoughts over the rival contentions raised. ( 6 ) FROM the material on record, it is seen that Konaje police had submitted a charge-sheet against the accused-revision petitioner for the said offences before the learned Magistrate and after a full dressed trial, the accused came to be convicted for the said offences. Feeling aggrieved, the accused carried an appeal before the learned Sessions Judge. ( 6 ) FROM the material on record, it is seen that Konaje police had submitted a charge-sheet against the accused-revision petitioner for the said offences before the learned Magistrate and after a full dressed trial, the accused came to be convicted for the said offences. Feeling aggrieved, the accused carried an appeal before the learned Sessions Judge. After hearing both sides, the learned Sessions Judge had dismissed the appeal. Feeling aggrieved, the accused has again come up before this court with the instant revision petition. ( 7 ) THE main grievance of the learned counsel for revision petitioner is that the learned Sessions Judge had not at all reappreciated the evidence on record and the same has resulted in miscarriage of justice. On a careful perusal of the relevant provisions, it is seen that Section 374, cr. P. C. provides for an appeal by an accused against a judgment of conviction. It is a well settled principle of law that the accused invariably would be challenging the legality and validity of the judgment impugned and the powers of the appellate Court are wide and the appellate judge is required to reappreciate the evidence on record and record his findings. ( 8 ) AT this stage, it is also necessary to mention that in a decision of the Madras High Court rendered in the case of Chappan v. Moidin, reported in (1899) ILR 22 Mad 68, it has been held that two things which are required to constitute an appellate jurisdiction are the existence of the relation of superior and inferior Court and the power, on the part of the former, to review decisions of the latter. Emphasis is laid on the phrase "review". ( 9 ) IN the commentary on American Jurisprudence by Andrews, Volume II, page 1510, it is pointed out that appellate procedure embraces two distinct modes of its exercise, namely, first, the record of the inferior tribunal may be brought to the superior tribunal and the decision reviewed, affirmed, reversed or modified; or, secondly, the superior tribunal may check the exercise or usurpation of power by the inferior tribunals exercising judicial or quasi judicial power, or direct the mode in which they shall proceed without controlling the manner of doing that which is the result of judicial deliberation. Here again, emphasis has been laid on the phrase "review". Here again, emphasis has been laid on the phrase "review". ( 10 ) IN a decision of the Punjab High Court, rendered in the case of Chautala Workers Co-operative Transport Society Ltd. v. State of Punjab, reported in AIR 1962 Pandh 94, it has been held that, an appeal in legal parlance is held to mean the removal of the cause from an inferior or subordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of the subordinate tribunal is erroneous and, therefore, liable to be rectified or set right. Emphasis is laid on the phrase "test and scrutinize". ( 11 ) IT is also pertinent to mention that in a decision of the Apex court rendered in the case of Shyam Deo Pandey v. State of Bihar, reported in AIR 1971 SC 1606 : ( 1971 0 Crlj 1177 ), it has been held that perusal of record is a condition precedent for a proper disposal of an appeal either by dismissing the same or in any other manner contemplated in the provisions of Section 423, Cr. P. C. (1898 ). From this ratio, it is clear that the perusal of record is not an empty formality and the same has to be understood in the light of the letter and spirit of the same. It may not be out of context, if it is mentioned that when the finding of fact recorded by a trial judge is challenged, it would be the duty of the appellate court to reappraise the entire evidence and arrive at the just conclusion. ( 12 ) IN this regard, it is also necessary to mention a passage from page No. 603 of the Code of Criminal Procedure by Ratanlal and Dhirajlal:"judgment in appeal :- The judgment of an appellate court should set out the cases for the prosecution and the defence, point or points for determination, the decision thereon and the reasons for the decision. " ( 13 ) ON a perusal of the judgment impugned, it is seen that the learned Sessions Judge had virtually devoted paragraphs-1 to 16 for placing on record or rather reproduced the evidence concerning the case. In paragraph-17, the learned Sessions Judge has observed thus :"17. " ( 13 ) ON a perusal of the judgment impugned, it is seen that the learned Sessions Judge had virtually devoted paragraphs-1 to 16 for placing on record or rather reproduced the evidence concerning the case. In paragraph-17, the learned Sessions Judge has observed thus :"17. The learned Magistrate on a proper appreciation of evidence has held that the prosecution has established the alleged incident. The act of the accused in entering the house of the complainant when the complainant refused to accept the face powder and jaggery offered by him amounts to criminal trespass. His act in forcibly holding the hand of the complainant and breaking her bangles and tearing her nighty amounts to use of criminal force with the intention of outraging her modesty. The accused has thus committed offences punishable under Ss. 354 and 448, I. P. C. " ( 14 ) KEEPING in mind the statutory provisions and the said settled principles of law, on a careful perusal of paragraph-17 of the judgment, it is seen that there is absolutely no reappreciation of the evidence on record by the learned Sessions Judge and the learned Sessions Judge had also not left anything on record in the form of reasons for arriving at the said conclusion. It is also pertinent to mention that an appeal before the Sessions Court is the final form and forum for an accused to urge for reappreciation of the evidence on record and the learned Sessions Judge is required to reappreciate the evidence as stated earlier and record his findings thereon. In view of the facts and circumstances of the case, this court is of the considered opinion that the judgment of the appellate Court cannot be stated to be in conformity with the statute law and the precedent law. Under these circumstances, it would be essential in the ends of justice, if the order impugned is set aside and the matter is remanded to the learned Sessions Judge for rehearing. ( 15 ) FOR the foregoing reasons, the revision petition stands allowed in the following terms : the judgment of the learned Sessions Judge impugned under the revision petition is hereby set aside and the matter is remitted to the learned Sessions Judge with a direction to rehear the same and to dispose of in accordance with law as expeditiously as possible. The bail bond, if any, shall stand cancelled. The bail bond, if any, shall stand cancelled. As both the parties are present here, in order to save time, they are directed to appear before the learned Sessions Judge on 22-9-2003 and receive instructions. The revision petitioner is also directed to offer a fresh bail bond before the learned Sessions Judge. Until such period, the bail bond executed pursuant to the order of this Court to remain in force. Petition allowed. --- *** --- .