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CASE NO.: Appeal (crl.)  1287 of 2005

PETITIONER: State of M.P.                                               

RESPONDENT: Parasram                                                            

DATE OF JUDGMENT: 04/10/2005

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. 2843/2004)  

G. P. MATHUR, J.

       Leave granted.

2.      This appeal has been preferred by the State of M.P. against the  judgment and order dated 13.8.2003 of Justice N.S. Azad of M.P. High  Court in Crl. Appeal Nos. 979 of 2002.

3.        The trial Court convicted the accused under Section 376 I.P.C. and  awarded him a sentence of 7 years R.I. and a fine of Rs.500/- and in  default to undergo simple imprisonment for a further period of one month.    The High Court partly allowed the appeal and while upholding the  conviction of the accused reduced the sentence to the period already  undergone which is nearly 1 year and 2 months.    

4.      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 and is contrary to the minimum prescribed by law.

5.      Sub-section (1) of Section 376 I.P.C. provides that whoever, except  in the cases provided for by sub-section (2), commits rape shall be  punished with imprisonment of either description for a term which shall  not be less than 7 years but which may be for life or for a term which may  extend to 10 years and shall also be liable to fine.  In the category of cases  covered under sub-section (2) of Section 376, the sentence cannot be less  than 10 years but which may be for life and shall also be liable to fine.   The proviso appended to sub-section (1) lays down that the Court may for  adequate and special reasons to be mentioned in the judgment, impose a  sentence of imprisonment for a term of less than 7 years.  There is a  similar proviso to sub-section (2) which empowers the Court to award a  sentence of less than 10 years for adequate and special reasons to be  mentioned in the judgment.  The High Court in the impugned order has  awarded a sentence which is not only grossly inadequate but is also  contrary to express provision of law.   The High Court has not assigned  any satisfactory reason much less adequate and special reasons for  reducing the sentence to a term which is far below the prescribed  minimum.  Therefore, the sentence awarded by the High Court is clearly  illegal.  

6.      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.  

7.      Chapter XXIX of Code of Criminal Procedure deals with  APPEALS.   Section 384 Cr.P.C. empowers the appellate Court to dismiss

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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.  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."    

8.      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.  

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