Research › Search › Judgment

Kerala High Court · body

2010 DIGILAW 265 (KER)

Santosh @ Rajeevan v. State of Kerala

2010-03-23

V.RAMKUMAR

body2010
Judgment : The question of law arising for judicial resolution in this revision is as to whether in an appeal by the accused it is permissible for the appellate court to transpose or interchange the dissimilar sentences of imprisonment awarded by the trial court in respect of the conviction for two separate offences without enhancing the aggregate sentence imposed by the trial court for those offences. 2. The revision petitioner who was the 1st accused in C.C.No.615 of 2000 on the file of the Judicial First Class Magistrate-I, Ottappalam for offences punishable under Sections 457, 461 and 380 r/w Section 34 IPC, challenges the conviction entered and the sentence passed concurrently against him by the courts below for offences punishable under Sections 457 and 318 r/w Section 34 IPC. 3. The case of the prosecution can be summarized as follows: Sometime during the night of 03.02.2000, the two accused persons in furtherance of their common intention to commit theft criminally trespassed into building No.III/286 of Pookkottukavu Grama Panchayath of Ottappalam taluk belonging to the Ottappalam Taluk Rubber Marketing Society by breaking open the shutter of the front room of the building and committed theft of rubber sheets weighing one ton and worth Rs.26,000/-and also committed theft of cash worth Rs.28,000/- after breaking open the drawer of the table in which the same was kept. The accused have thereby committed offences punishable under Sections 457, 380 and 461 r/w Section 34 IPC. 4. Among the two accused persons, the revision petitioner alone faced trial, the other accused person remaining absconding. On the revision petitioner pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 9 witnesses as P.ws 1 to 9 and got marked 4 documents as Exts. P1 to P4 and 4 material objects as MO's 1 to 4. 5. After the close of the prosecution evidence, the revision petitioner was questioned under Sec.313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. The accused examined two witnesses as Dws.1 and 2 and got marked one letter as Ext.D1. 6. 5. After the close of the prosecution evidence, the revision petitioner was questioned under Sec.313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. The accused examined two witnesses as Dws.1 and 2 and got marked one letter as Ext.D1. 6. The learned Magistrate, after trial as per judgment dated 16.01.2006 acquitted the revision petitioner of the offence punishable under Section 461 IPC, but convicted him of the remaining two offences. For his conviction under Section 457 IPC, he was sentenced to rigorous imprisonment for two years and for the conviction under Section 380 IPC, he was sentenced to rigorous imprisonment for three years with a direction that the substantive sentences shall run concurrently. On appeal preferred by the revision petitioner as Crl. Appeal No. 115 of 2006 before the Sessions Court, Palakkad, the Additional Sessions Judge, Fast Track-II, Palakkad as per judgment dated 03.11.2009 confirmed the conviction but altered the sentence by enhancing sentence of rigorous imprisonment for two years awarded by the trial court under Section 457 IPC to 3 years and reducing the sentence of rigorous imprisonment for three years awarded under Section 380 IPC, to two years. The lower appellate court was of the view (according to me, wrongly) that the offence punishable under Section 457 IPC was a graver offence which warranted longer or harsher sentence. Hence that Court interchanged or transposed the sentences as above. According to the lower appellate court while altering the sentence, the only case which the appellate court should take was to ensure that the aggregate sentence imposed by the lower appellate court should not exceed the aggregate sentence imposed by the trial court. The learned Addl. District Judge relied on in this connection, a decision by a Division Bench of the Travancore High Court in Abhayagunavardhana v. State (1951 KLT 261) wherein the scope of Section 350 of the Travancore Criminal Procedure Code, 1117 M.E. corresponding to Section 386 Cr.P.C was considered. 7. The conviction concurrently recorded by the Courts below is after a careful evaluation of the oral and documentary evidence in the case and this Court sitting in the rarefied revisional jurisdiction would be loath to interfere with the said conviction which is accordingly confirmed. 7. The conviction concurrently recorded by the Courts below is after a careful evaluation of the oral and documentary evidence in the case and this Court sitting in the rarefied revisional jurisdiction would be loath to interfere with the said conviction which is accordingly confirmed. But I am afraid that reliance placed by the lower appellate court on Abhayagunavardhana’s case to justify the enhancement of sentence awarded under Section 457 IPC is misconceived. In the case before the Travancore High Court, the trial court had convicted the accused therein of two distinct offences but imposed sentence only for one of the offences. In the appeal by the accused, the lower appellate court confirmed the conviction for both offences and imposed a sentence for that offence for which the trial court had not awarded any sentence. The appellate court in that case, however, maintained the aggregate sentence for the two offences within the duration of the sentence of imprisonment awarded by the trial court for one of the offences by reducing the sentence for that offence and by awarding separate sentence for the offence for which no separate sentence was awarded by the trial court. But that is not the position in the present case before me. Here the trial court had awarded specific sentences for each of the offences. 8. The powers of an appellate court are to be discerned from Section 386 Cr.P.C. which reads as follows:- “386. But that is not the position in the present case before me. Here the trial court had awarded specific sentences for each of the offences. 8. The powers of an appellate court are to be discerned from Section 386 Cr.P.C. which reads as follows:- “386. Powers of the Appellate Court – After perusing such record and hearing the appellant or his pleader, if he appears, and the public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may – a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; b) in an appeal from a conviction - i) reserve the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or ii) alter the finding, maintaining the sentence, or iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; c) in an appeal for enhancement of sentence – i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or’ ii) alter the finding maintaining the sentence, or iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; d) in an appeal from any other order, alter or reverse such order; e) make any amendment or any consequential or incidental order that may be just and proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” In this case, we are concerned with sub-clause (iii) of Clause (b) of Section 386. The expression “finding” in Sec. 386 Cr.P.C. means the finding in respect of the conviction for an offence. When there is a conviction for more offences than one there are distinct findings in respect of conviction for each of such offences. (See Jayaram Vithoba v. State of Bombay – AIR 1956 SC 146). Unless there is a sentence, there cannot be enhancement of that sentence. When no sentence is awarded by the trial Court and a sentence is awarded only for the first time in appeal, it cannot be said to be enhancement of sentence. The law does not provide for transposition of sentence. It only provides for altering the finding and maintaining the sentence. See Jayaram Vithoba’s Case (supra). 9. Reliance placed by the lower appellate court on the decision in Abhayagunavardhana v. State – 1951 KLT 261 so as to enhance the sentence awarded by the trial Court for the offence punishable under Section 457 I.P.C and reduce the sentence awarded by the trial court for the other offence in order to maintain the aggregate sentence within the aggregate sentence awarded by the trial court was misconceived. In Jayaram Vithoba’s case also the accused was convicted for two offences by the trial Court but sentence was imposed only for one offence and no sentence was imposed for the remaining offence. In the appeal filed by the accused the lower appellate court in that case confirmed the conviction recorded by the trial Court for both the offences and imposed a sentence also for that offence for which no sentence was awarded by the trial Court. In Order to see that the aggregate sentence awarded by the lower appellate Court does not exceed the sentence imposed by the trial Court, the lower appellate court in that case reduced the sentence awarded by the trial Court to make the aggregate sentence for both the offences equal to the sentence awarded by the trial Court for one of the offences. The said action by the lower appellate court was approved by the Bombay High Court, which, however, relied on an observation by a Division Bench of the Patna High Court in Pradip Chaudhari v. Emperor – 1948 Crl.L.J. 182 to the effect that the Appellate Court has ample power to transpose the sentence so long as the transposition does not amount to an enhancement. In the light of the authoritative decision of the Supreme Court in Jayaram Vithoba’s case with a coram strength of three Judges, there cannot be transposition of sentence by an appellate Court. 10. In the case on hand before me, the trial Court had imposed specific sentences in respect of the conviction for each of the two offences. Hence, it was not permissible for the lower appellate Court to interchange the sentences awarded by the trial court for the two offences by enhancing the sentence awarded for one of the offences although the lower appellate Court had the power to reduce the sentence awarded for the other offence. The sentence cannot be enhanced either under sub-clause (iii) of clause (b) or under clause (e) of Section 386 (b) unless the accused had been given an opportunity of showing cause against such enhancement. The lower appellate court was, therefore, wrong in enhancing the sentence imposed by the trial court for the conviction under Section 457 I.P.C in the appeal filed by the accused and without giving the accused an opportunity of showing cause against such enhancement. In the result, the sentence imposed by the lower appellate court for the offence punishable under Section 457 IPC is set aside and the sentence imposed by the trial court for the said offence is restored. The revision petitioner shall undergo rigorous imprisonment for two years for each of the offences under Section 457 and 380 IPC. The said sentences shall run concurrently. The revision is disposed of confirming the conviction but modifying the sentence as above.