REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  265        OF 2009 (Arising out of SLP (Crl.) No.5359 of 2007)

Eliamma & Anr. ..Appellants

Versus

State of Karnataka ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Karnataka High Court dismissing the appeal filed by the appellants.

Both  the  appellants  faced  trial  for  alleged  commission  of  offences

punishable under Sections 302, 201 read with Section 34 of the Indian Penal

Code,  1860(in short the ‘IPC’).  Learned Third Additional Sessions judge

D.K. at Mangalore in Sessions Case No. 94 of 1995 held that the accused

persons were to be convicted in terms of Section 304 Part II and Section

201 read with Section 34 IPC, so far as appellant No.1 is concerned and

Section 201 read with Section 34 IPC so far as appellant No.2 is concerned.

3. Background facts giving rise to the trial are as follows:

M.T. George (hereinafter referred to as the ‘deceased’) was addicted

to alcohol and used to assault A1. Al had become desperate with the bad

conduct of the deceased. On 6.3.1995 at 9.30 p.m. the deceased picked up

quarrel, assaulted A1 and tried to pull  her sari. A2 and A3 were present.

Because of the ghastly conduct of the deceased, A1 dealt a blow with the

iron  rod  on  the  head  of  the  deceased  which  resulted  in  his  death.  The

accused persons stealthily buried the body in the backyard of the house. A1

in the early morning of 7.3.1995 informed school  teacher  (PW 1) of the

village  that  the  deceased  quarreled  with  her  and  tried  to  pull  her  sari.

Therefore, she hit the deceased on his head and that he was unwell. PW1

heard the fact from A1 and went away. In the evening PW1 met A2 and

made enquiries about the health of the deceased. A2 informed that his father

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was dead and that they buried the body in the backyard. PW1 suspected foul

play and lodged FIR before the police.  At the instance of A1 and A2 the

dead body buried in the backyard was exhumed on 8.3.1995 in the presence

of T.E.M.

The prosecution relied on the extra judicial confession made by A1

before PW 1 and the circumstances  of recovery of  the  dead body at  the

instance  of  both  the  accused  persons  proved  their  guilt.  An appeal  was

preferred before the High Court which by the impugned judgment held that

actual conviction should have been in terms of Section 304 Part I IPC. But

in the absence of challenge by the State there was no scope for interference.

The evidence of PW 1 was found to be credible. The appeal was dismissed.

4. Though in  support  of  the appeal  learned counsel  for  the  appellant

submitted that the High Court ought to have accepted the stand that PW1’s

evidence is not without blemish, the same is clearly without substance.  The

evidence of PW 1 has been analysed by both the trial court and the High

Court and have been found to be cogent and credible.  The alternative plea

of learned counsel for the appellant was that neither the trial court nor the

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High Court considered the effect of provisions of Section 360 of the Code

of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’).

5. Learned counsel for the respondent-State on the other hand supported

the judgment.   

6. It appears that the trial court convicted A1 under Section 304 Part II

IPC  and  Section  201  read  with  Section  34  IPC  and  sentenced  him  to

undergo rigorous imprisonment for four years and one year respectively.  So

far  as  A2  is  concerned  he  was  convicted  under  Section  201  read  with

Section 34 and was sentenced to undergo imprisonment for one year.  The

other co-accused was convicted by the juvenile court.   

7. Section 360 Cr.P.C. reads as follows:

“360.  Order  to  release  on  probation  of  good  conduct  or  after admonition :--(1) When any person not under twenty-one years of age  is  convicted  of  an  offence  punishable  with  fine  only  or  with imprisonment for a term of seven years or less, or when any person under  twenty-one  years  of  age  or  any  woman  is  convicted  of  an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court  before  which  he  is  convicted,  regard  being  had  to  the  age, Character or antecedents of the offender, and to the circumstances in which  the  offence  was  committed,  that  it  is  expedient  that  the offender should be released on probation of good conduct, the Court

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may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear  and receive  sentence  when  called  upon  during  such  period (not  exceeding  three  years)  as  the  Court  may  direct,  and  in  the meantime to keep the peace and be of good behaviour:

Provided that, where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate  is  of  opinion  that  the  powers  conferred  by this  section should be exercised,  he shall  record his opinion to that  effect,  and submit the proceedings to a Magistrate of the first class, forwarding the  accused  to,  or  taking  bail  for  his  appearance  before  such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make  such  inquiry  or  take  such  evidence  himself  or  direct  such inquiry or evidence to be made or taken.

(3)  In  any case in  which  a  person is  convicted  of  theft,  theft  in  a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he  is  so  convicted  may,  if  it  thinks  fit,  having  regard  to  the  age, character, antecedents or physical or mental condition of the offender and  to  the  trivial  nature  of  the  offence  or  any  extenuating circumstances  under  which  the  offence  was  committed,  instead  of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court  or Court of Session may, on appeal when

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there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu, thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under this sub-section  inflict  a  greater  punishment  than  might  have  been inflicted by the Court by which the offender was convicted.

(6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have  dealt  with  the  offender  in  respect  of  his  original  offence,  is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension.

(9)  An offender,  when  apprehended  on  any such  warrant  shall  be brought forthwith before the Court issuing warrant, and such Court may either remand him in custody until the case is heard or admit him to  bail  with  a  sufficient  surety  conditioned  on  his  appearing  for sentence and Court may, after hearing the case, pass sentence.

(10)  Nothing  in  this  section  shall  affect  the  provisions  of  the Probation  of  Offenders  Act,  1958  (20  of  1951),  the  Children  Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.”  

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8. It is rightly contended by the learned counsel for the appellant that the

effect,  relevance  and  applicability  of  Section  360  Cr.P.C.  have  not  been

considered by the courts below.   

9. In Chandreshwar Sharma v. State of Bihar [2000(9) SCC 245] it was

observed as follows:

“The  appellant  herein  was  convicted  under  Sections  379  and 411 IPC and was sentenced to rigorous imprisonment for one year  as  3.5  kg  of  non-ferrous  metal  was  recovered  from his possession.  On  an  appeal  being  filed,  the  conviction  under Section 379 was affirmed. The appellant  carried the matter in revision,  but  the revision  also  stood  dismissed.  All  along the case of the appellant was that the recovery from the tiffin carrier kept  on the cycle would not  tantamount to recovery from the possession  of  the  appellant,  and  this  contention  has  been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable. Pursuant to the said notice, Mr. Singh, the learned Standing Counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well  as  the  court  of  appeal,  and  that  of  the  High  Court,  it transpires  that  none  of  the  forums  below had  considered  the question of applicability of Section 360 of the Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together  would indicate that in any case where the court could  have  dealt  with  an  accused  under  Section  360  of  the Code,  and yet does  not  want  to  grant  the  benefit  of  the  said provision then it shall record in its judgment specific reasons for not  having  done  so.  This  has  apparently  not  been  done, inasmuch as  the  Court  overlooked the  provisions  of  Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reason not to apply the provisions of Section 360 of the Code of Criminal Procedure. We accordingly, while maintaining the conviction of the appellant, direct that he will be dealt with

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under Section 360, and as such, we direct that the appellant be released  on  probation  of  good  conduct  instead  of  sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be  executed  before  the  learned  Chief  Judicial  Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly.”

10. Therefore, while upholding the conviction, we remit the matter to the

trial  court  for  limited  purpose  for  deciding  whether  the  benefit  under

Section 360 Cr.P.C. can be extended to the appellants.

11. In view of the above the appeal is allowed to the extent indicated.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

……………………………………J. (H.L. DATTU)

New Delhi, February 11, 2009

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