Powers of appellate court
- There is no room to doubt the powers of the appellate court and that it has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to bear in mind that in case of acquittal there is double presumption of innocence in favour of the accused. First, the presumption of innocence is available to all accused under the criminal jurisprudence as every person is presumed to be innocent unless proved to be guilty before the competent court of law. Secondly, the accused having secured the acquittal, the presumption of their innocence gets further reinforced and strengthened. Therefore, the appellate court ought not to lightly interfere with the order of acquittal recorded by the trial court unless there is gross perversity in the appreciation of the evidence and even if two views are possible, it should follow the view taken by the trial court rather than choosing the second possible version.
High Court error
- In view of the above settled legal position and the fact that the trial court has recorded acquittal of all accused upon careful appreciation of the entire evidence on record with which the High Court had not found fault with, we are of the opinion that the appellate court committed an error of law in recording 11 conviction of A1 and A3 merely for the reason that their presence and participation in the crime was proved by the evidence of one of the witnesses.
- The case of the A3 stands on altogether a different pedestal insofar as neither the allegations in the FIR nor the evidence establishes his role in the killing of the deceased. As stated earlier, his role is confined to kicking, hitting and throwing chili powder rather than assaulting any of the injured persons or the deceased with the knife.
Accused have to be convicted on their individual Acts
- This Court in Darshan Singh & others vs. State of Punjab (2009) 16 SCC 290 ruled that accused have to be convicted on the basis of their individual acts and where an accused inflicted simple injuries with lathis etc., he is ordinarily not to be convicted for the offence of murder.
Court convicting the accused must hear quantum of sentence
- This apart, in view of sub-Section (2) of Section 235 of CrPC, the court is obliged to hear the accused persons after their conviction on the quantum of sentence before passing a sentence against them. Even otherwise as a general rule, the trial court is duty bound to adjourn the matter to a future date after recording the conviction so as to call upon both the sides to hear on the question of sentence before sentencing the accused persons.
- The principle of according opportunity of hearing to the convict before sentencing him is equally applicable where the sentencing is done by the appellate court. It may be true that opportunity of hearing may not have a bearing, if minimum of the sentence is being imposed. It may also not be necessary in every case to fix a future date after conviction for the purpose of sentencing but the convicts are entitled to opportunity of hearing on sentence.
- In the case at hand, the trial court had acquitted A1 and A3 but they were convicted by the appellate court. Therefore, the appellate court was obliged under law to hear them on the quantum of sentence in accordance with the mandate of sub Section (2) of Section 235 of CrPC before pronouncing any sentence against them. The appellate court has ex-facie failed to follow the said procedure.Accused acquitted.
Party
FEDRICK CUTINHA vs. STATE OF KARNATAKA – CRIMINAL APPEAL No.2251 OF 2010 – April 18th, 2023
Contents
https://main.sci.gov.in/supremecourt/2010/21988/21988_2010_15_1503_43678_Judgement_18-Apr-2023.pdf
