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2006 DIGILAW 899 (BOM)

Lahanappa Namaji Ghorpade v. State of Maharashtra

2006-06-16

ANOOP V.MOHTA

body2006
JUDGMENT :- The petitioner-original accused have been charged, tried and convicted for the offence punishable under Ss.452, 324 r.w. 34 of Indian Penal Code (I.P.C.) by the J.M.F.C., Jintoor. Being aggrieved by the said order petitioners referred Criminal Appeal No.38 of 1992 before the Additional Sessions Judge, Parbhani. The learned Additional Sessions Judge, Parbhani while dismissing the appeal had framed only one point i.e. "whether the order of conviction and sentence passed against appellants for the offence under Ss.452, 324 r.w. 34 of I.P.C. is erroneous and improper." 2. The learned counsel appearing for petitioners has pointed out that the Supreme Court in the case of Pad am Singh Vs. State of V.P., reported in (2001)1 SCC 621, after considering the provisions of Criminal Procedural Code (Cr.P.C.) specially Ss.374, 378 and 386, has observed in reference to the obligation of the appellate court to look into an available material in the case, while arriving at an independent conclusion. It is further observed that "It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court". The Apex Court has further observed that "the judicial approach in dealing with the cases has to be cautious, circumspect and careful and the High Court, therefore has to consider the matter carefully and examine all relevant and material circumstances before upholding the conviction". 3. After hearing both parties, I am convinced that the Additional Sessions Judge, Parbhani while dismissing the appeal failed to deal with points as dealt with by the trial court. The separate reasonings as given, need more details as observed by the Apex Court in the case of Pad am Singh (supra) and in many other cases. 4. It is not expected that in each and every matter the appellate court should give detailed reasonings on all points, but while appreciating the evidence and specially when it is the case of conviction, it is expected that the appellate court to consider important points independently and separately. 4. It is not expected that in each and every matter the appellate court should give detailed reasonings on all points, but while appreciating the evidence and specially when it is the case of conviction, it is expected that the appellate court to consider important points independently and separately. The appellate court to pass conviction or acquittal order based on the same material, by giving sufficient reasons. The parties when preferred such statutory appeal is bound to argue that the appellate court must come to an independent conclusion as to whether the evidence and the material as brought on record is sufficient or not. The facet of the prosecution to prove the case beyond reasonable doubt based on same evidence cannot be overlooked. The presumption of innocence of the accused is another factor, while assessing the material for a conviction or an acquittal. 5. In the present case firstly, the appellate court has relied on the statement under Section 313 of Cr.P.C. and compared it with two witnesses i.e. P.Ws.2 and 3 without touching the merits of the matter. Secondly, the appellate court has considered the issue regarding reduction of sentence and based on this only, he maintained the order of conviction. The learned J.M.F.C. by giving detailed reasons on merits, has passed the impugned order of conviction. The requirement of an independent appreciation of the material by the appellate court on merit is missing. The submission of the learned advocate for the accused, after reading the reasonings of the appellate court, is correct. The learned A.P.P. could not support the same. Still there is no reason to acquit the accused as contended. However, in the interest of justice, the remand of the case for reasoning on merit will be appropriate. 6. In view of above, the impugned order of appellate court i.e. Additional Sessions Judge, Parbhani dated 25-11-1998 is quashed and set aside. However, the appeal is remanded back to the Sessions Judge, Parbhani for deciding the same by giving notice to both sides, within four months. The bail bond stands cancelled. 7. In view of this, the present revision application is partly allowed and disposed of accordingly. Application partly allowed.