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Himachal Pradesh High Court · body

2016 DIGILAW 1834 (HP)

Mahinder Kumar v. State of Himachal Pradesh

2016-08-31

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. This revision petition has been filed by the petitioner against the judgment passed by the Court of learned Additional Sessions Judge, Mandi, Camp at Karsog in Criminal Appeal No. 1 of 2005 dated 07.03.2008 vide which, learned appellate Court while acquitting the present petitioner for commission of offence punishable under Section 332 of the Indian Penal Code, has modified the conviction of the present petitioner under Section 353 of the Indian Penal Code and sentenced him imprisonment till rising of the Court with fine of Rs. 1000/-, which appeal was filed by the present petitioner against judgment of conviction passed against him by the Court of learned Sub Divisional Judicial Magistrate, Karsog in Police Challan No. 33-11 of 2003 dated 30.11.2004 vide which, learned trial Court had convicted the present petitioner for commission of offences punishable under Sections 353, 332, 186, 504 and 509 of the Indian Penal Code. 2. The sentence imposed by learned trial Court upon the present petitioner reads as under:- “Ld. Defence counsel stated that accused is first offender and no previous conviction is standing against him and prayed for lenient view. On the other hand, Mrs. Mukta Kashyap, ld. APP stated that the accused has committed the offences and deserves no leniency. Since the accused had visited the hospital under the influence of liquor and deterred the Staff nurse from discharging her official duty thereafter, he also deterred doctor who were treating his wife. To my mind, accused deserves no leniency, therefore, accused is sentenced with simple imprisonment for 6 months with fine of Rs.500/- for the offence punishable under Section 353 IPC, also imposed fine to the sum of Rs.500/- for the offence punishable under Section 332 IPC, accused is sentenced with simple imprisonment for 15 days for the offences punishable under Sections 186, 504 and 509 IPC and in default of payment of fine, he shall further undergo simple imprisonment for one month. Conviction shall run concurrently. Copy of judgment be supplied to the accused free of costs. File be consigned to record room after due completion.” 3. In the appeal which was filed by the petitioner against the said judgment of conviction passed by learned trial Court, following is the final order passed by learned appellate Court:- “FINAL ORDER 23. Conviction shall run concurrently. Copy of judgment be supplied to the accused free of costs. File be consigned to record room after due completion.” 3. In the appeal which was filed by the petitioner against the said judgment of conviction passed by learned trial Court, following is the final order passed by learned appellate Court:- “FINAL ORDER 23. In view of the findings and observation given on point No. 1, as discussed hereinabove, it has been held that the accused has assaulted staff nurse Meenkshi Gupta and Dr. Prakash Verma while they were discharging their official duties as a public servant and he also obstructed them from discharging their official duties. Thus, the accused is liable to be convicted and sentenced under Section 353 I.P.C. only. Whereas he is entitled to be acquitted under Section 332 I.P.C. 24. So, keeping in view the entire facts of the case the sentence of the accused is modified to the extent that under Section 353 I.P.C. he is sentenced to imprisonment till rising of the Court and to pay fine of Rs.1000/- and in default of payment of fine he shall undergo simple imprisonment for 15 days. The record of the lower court with a copy of this judgment be sent back and record of this Court be consigned to record room. Announced in the open court this 7th day of March, 2008.” 4. Though the present revision petition has been filed by the accused feeling aggrieved by his conviction maintained by learned appellate Court under Section 353 of the Indian Penal Code, however, there is a jurisdictional error apparent on the face of record, which otherwise renders the said judgment not sustainable in law. There is no finding returned by learned appellate Court with regard to conviction of the present petitioner for commission of offences punishable under Sections 186, 504 and 509 of the Indian Penal Code. There is no finding returned by learned appellate Court with regard to conviction of the present petitioner for commission of offences punishable under Sections 186, 504 and 509 of the Indian Penal Code. Apparently from the perusal of the judgment passed by learned appellate Court, the only conclusion which can be drawn is that the petitioner had been convicted for commission of offences punishable under Sections 353 and 332 of the Indian Penal Code and learned appellate Court while acquitting the petitioner for commission of offence under Section 332 of the Indian Penal Code has held him guilty for commission of offence punishable under Section 353 of the Indian Penal Code and sentenced him imprisonment till rising of the Court and fine of Rs. 1000/-. In other words, without there being any discussion on the conviction which has been passed against the present petitioner under Sections 186, 504 and 509 of the Indian Penal Code, learned appellate Court with its silence on the judgment, has set aside the sentence so imposed upon the petitioner under the said Sections. 5. Judgment passed by learned appellate Court is perverse and not sustainable in law. A perusal of the judgment passed by appellate Court demonstrates that a jurisdictional error has been committed by learned appellate Court because learned appellate Court while acquitting the accused for commission of offence punishable under Section 332 of the Indian Penal Code and modifying his sentence till rising of the Court with fine of Rs. 1000/- under Section 353 of the Indian Penal Code has lost sight of the fact that the petitioner was also convicted for commission of offences punishable under Sections 186, 504 and 509 of the Indian Penal Code, on which there is no adjudication by learned appellate Court. 6. While deciding an appeal either filed by the accused or the State, it is duty of the appellate Court to decide on all the findings which have been returned by learned trial Court keeping in view the grounds which have been taken by the appellant in the grounds of appeal. Non adjudication on all the issues which are raised in the appeal not only adversely prejudices the rights of the parties, but it also deprives the party of the of being appreciated both on facts and law at the stage of first appeal which is the statutory right of a party. 7. Non adjudication on all the issues which are raised in the appeal not only adversely prejudices the rights of the parties, but it also deprives the party of the of being appreciated both on facts and law at the stage of first appeal which is the statutory right of a party. 7. Therefore, in my considered view, the judgment passed by learned appellate Court in Criminal Appeal No. 1 of 2005 dated 07.03.2008 is not sustainable in law and the same is accordingly set aside. The case is remanded back to the learned appellate Court to adjudicate the appeal afresh preferred by the present petitioner against the judgment passed by learned trial Court. Parties are directed to put in appearance before learned appellate Court on 26th September, 2016. Registry is directed to send the records of the case to the learned appellate Court forthwith. Petition stands disposed of accordingly.