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2020 DIGILAW 445 (ALL)

Gopal @ Ramgopal v. State of U. P.

2020-02-10

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This criminal revision under Section 397/401 of Cr.P.C. has been filed by Gopal @ Ram Gopal, against judgment and order dated 1.2.2020, passed by Additional District and Sessions Judge, Court No. 2, Aligarh, in Criminal Appeal No. 33/2019, Gopal @ Ram Gopal Vs. State of U.P., whereby, order dated 25.2.2019, passed by trial Court of Additional Chief Judicial Magistrate, Court NO. 6, Aligarh, in Criminal Case No. 1705 of 2008, State Vs. Gopal @ Ram Gopal, arising out of Case Crime No. 212 of 2008, under Sections 498A, 323, 506 I.P.C. read with Section 3/4 of D.P. Act, Police Station Javan,, District Aligarh, has been enhanced by Appellate Court, with this contention that Appellate Court failed to appreciate facts and law placed before it. Convict appellant was convicted and sentenced for offenses punishable under Section 498-A I.P.C. with six months imprisonment and fine of Rs. 1,000/-, and for offence punishable under Section 4 of D.P. Act, with six months imprisonment and fine of Rs. 2,000/-, and in case of default in payment of fine, he was to undergo additional imprisonment of twenty days. Against, this judgment of conviction and sentence made therein, appeal was filed before Appellate Court of Session Judge, Aligarh, as Criminal Appeal No. 33/2019 (Gopal @ Ram Gopal Vs. State of U.P.) and this appeal was transferred to Court of Additional District and Sessions Judge, Court No. IInd, of Aligarh, wherein, above appeal was dismissed, confirming the judgment of conviction dated 25.2.2019 of trial Court. But, suo motu acquittal under Section 323 I.P.C. was converted into conviction, and sentence awarded were enhanced to one year imprisonment with fine of Rs. 50,000/-, under Section 498-A I.P.C. and in case of default of fine, six months imprisonment and fine of Rs. 10,000/-, with one years rigorous imprisonment under Section 4 of D.P. Act and in default one month rigorous imprisonment, with further sentence of six months rigorous imprisonment with fine of Rs. 1,000/-, and in default one month rigorous imprisonment for offence punishable under section 323 of I.P.C., with a direction for concurrent running of sentences and payment of 60 per cent of total amount as compensation to victim. Whereas, State has filed no appeal against judgment of acquittal, for offence punishable under section 323 of I.P.C. or against quantum of sentence, awarded by trial Court. Whereas, State has filed no appeal against judgment of acquittal, for offence punishable under section 323 of I.P.C. or against quantum of sentence, awarded by trial Court. Hence, appellate Court without issuing any notice and giving any opportunity and without being any appeal by State, has convicted for offence punishable under Section 323 of I.P.C. as well as enhanced sentence from six months simple imprisonment to one year rigorous imprisonment with fine of Rs. 50,000/- and 10,000/-, respectively, for offences punishable under Sections 498A I.P.C. and 4 of D.P. Act. It was apparently, erroneous against provision of Section 386 of Cr.P.C. Hence, this revision with above prayer. 2. Learned counsel for the revisionist vehemently argued that Appellate Court was either to pass a judgment affirming the order of sentence or conviction made by trial Court, or to set aside it with further direction, if any. But, it may not enhance sentence or may convert acquittal in conviction without any appeal by State or giving any opportunity to convict appellant. It was an appeal by appellant, with prayer for setting aside impugned judgment of conviction and sentence made, therein. But in that appeal, the Appellate Court has convicted, after reversing judgment of acquittal for offence punishable under Section 323 of I.P.C. and enhanced sentence as above. 3. Learned AGA agreed with above situation of law and position of impugned order that it was passed in an appeal filed by convict appellant and no appeal by State was there, regarding enhancement of sentence or appeal against acquittal for offence punishable under Section 323 of I.P.C. was there. There is enhancement of sentence for offences for which there was conviction. This was without any appeal filed by State. 4. Section 386 of Cr.P.C. propounds: - “386. Power of the Appellate Court. There is enhancement of sentence for offences for which there was conviction. This was without any appeal filed by State. 4. Section 386 of Cr.P.C. propounds: - “386. Power 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 or 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) reverse 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 or 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.” 5. Under sub-Section (III) of “b” of Section 386 of Cr.P.C. written as above, it is mandate that Appellate Court will not enhance sentence unless there is an appeal by State for enhancement of sentence and the same is being here. Against judgment of acquittal, there must be an appeal by State, whereas, admittedly, in present appeal, there was neither appeal by State either for enhancement of sentence or for conviction in offence, for which there was acquittal by trial Court and learned Additional Session Judge, has passed impugned judgment of conviction and sentence under Section 323 of I.P.C., with enhancement of offence punishable under Sections 498- A read with 4 of D.P. Act. It was apparently erogenous and against the provision of law of 'Code' given as above. 6. Hence, apparently, it is misuse of process of law and perversity in the judgment. 7. Hence, this revision is being allowed. 8. Impugned judgment of Appellate Court is being set aside and file is remanded back to District and Sessions Judge, Aligarh, for its hearing afresh.