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CASE NO.: Appeal (crl.)  1451 of 2005

PETITIONER: State of M.P.                                            

RESPONDENT: Bhura Kunjda                                             

DATE OF JUDGMENT: 24/10/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (Crl.) No.1362/2005) G. P. MATHUR, J.

1.      Delay in filing the special leave petition is condoned.    2.      Leave granted.

3.      This appeal has been preferred by the State of M.P. against the  judgment and order dated 27.1.2004 of Justice N.S. Azad of M.P. High  Court in Crl. Appeal No.2074 of 2000.

4.        The trial Court convicted the accused under Section 8 read with  Section 20(b) of the N.D.P.S. Act and sentenced him to undergo R.I. for a  period of 10 years and a fine of Rs.1 lakh and in default to undergo R.I.  for a further period of 3 years.  The High Court partly allowed the appeal  and while upholding the conviction of the accused under Section 8 read  with Section 20(b) of the N.D.P.S. Act reduced the sentence to the period  already undergone which is nearly 4 years and a fine of Rs.10,000/-.  

5.      Learned counsel for the appellant has submitted that the sentence  imposed by the High Court is wholly inadequate looking to the nature of  the offence.

6.      The High Court has not assigned any satisfactory reason for  reducing the sentence and fine.  

7.      That apart, the High Court has written a very short and cryptic  judgment.  To say the least, the appeal has been disposed of in a most  unsatisfactory manner exhibiting complete non-application of mind. There  is absolutely no consideration of the evidence adduced by the parties.  

8.      Chapter XXIX of Code of Criminal Procedure deals with  APPEALS.   Section 384 Cr.P.C. empowers the appellate Court to dismiss  an appeal summarily if it considers that there is no sufficient ground for  interference.   Section 385 Cr.P.C.  gives the procedure for hearing  appeals not dismissed summarily and Section 386 Cr.P.C. gives the  powers of the appellate Court.   In Amar Singh v. Balwinder Singh 2003  (2) SCC 518, the duty of the appellate Court while hearing a criminal  appeal in the light of the aforesaid provisions was explained and para 7 of  the report reads as under :

"7.     The learned Sessions Judge after placing reliance on  the testimony of the eye-witnesses and the medical evidence  on record was of the opinion that the case of the prosecution  was fully established.   Surprisingly, the High Court did not  at all consider the testimony of the eye witnesses and   completely ignored the same.   Section 384 Cr.P.C.

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empowers the Appellate Court to dismiss the appeal  summarily if it considers that there is no sufficient ground  for interference.   Section 385 Cr.P.C. lays down the  procedure for hearing appeal not dismissed summarily and  sub-section (2) thereof casts an obligation to send for the  records of the case and to hear the parties.   Section 386  Cr.P.C. lays down that after perusing such record and  hearing the appellant or his pleader and the Public  Prosecutor, the Appellate Court may, in an appeal from  conviction, reverse the finding and sentence and acquit or  discharge the accused or order him to be re-tried by a Court  of competent jurisdiction.   It is, therefore, mandatory for the  Appellate Court to peruse the record which will necessarily  mean the statement of the witnesses.   In a case based upon  direct eye-witness account, the testimony of the eye- witnesses is of paramount importance and if the Appellate  Court reverses the finding recorded by the Trial Court and  acquits the accused without considering or examining the  testimony of the eye-witnesses, it will be a clear infraction  of Section 386 Cr.P.C.    In Biswanath Ghosh v. State of  West Bengal & Ors. AIR 1987 SC 1155 it was held that  where the High Court acquitted the accused in appeal  against conviction without waiting for arrival of records  from the Sessions Court and without perusing evidence  adduced by prosecution, there was a flagrant mis-carriage of  justice and the order of acquittal was liable to be set aside.    It was further held that the fact that the Public Prosecutor  conceded that there was no evidence, was not enough and  the High Court had to satisfy itself upon perusal of the  records that there was no reliable and credible evidence to  warrant the conviction of the accused.   In State of UP v.  Sahai & Ors. AIR 1981 SC 1442 it was observed that where  the High Court has not cared to examine the details of the  intrinsic merits of the evidence of the eye-witnesses and has  rejected their evidence on the general grounds, the order of  acquittal passed by the High Court resulted in a gross and  substantial mis-carriage of justice so as to invoke extra- ordinary jurisdiction of Supreme Court under Article 136 of  the Constitution."    

9.      Since the judgment of the High Court is not in accordance with law,  we have no option but to set aside the same and to remit the matter back  to the High Court for a fresh consideration of the appeal.   The appeal  preferred by the State of M.P. is accordingly allowed, the judgment and  order of the High Court is set aside and the appeal is remanded back to the  High Court for a fresh hearing after issuing notice to the accused  respondent.   It is made clear that we have not gone into the merits of the  case and the High Court shall reappraise and examine the evidence on  record and decide the appeal in accordance with law.