Finding that the Trial Court had acquitted the first and the third accused, whereas they were convicted by the appellate court, the Supreme Court recently held that the appellate court was obliged under law to hear the accused on the quantum of sentence in accordance with the mandate of Section 235(2) of CrPC before pronouncing any sentence against them.

The appellate court has ex-facie failed to follow the said procedure, added the Court.

The two-judge Bench of Justice V. Ramasubramanian and Justice Pankaj Mithal observed that “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”.

AOR N. Annapoorani & Anuradha Mutatkar appeared for the Appellant and AOR Shubhranshu Padhi appeared for the Respondents.

In a nutshell, the eleven accused persons pursuant to an FIR registered against them, stood acquitted by the Trial Court for offences under Sections 143, 147, 148, 323, 324, 307, and 302 read with Section 149 of the Indian Penal Code, 1860. The acquittal of nine of them has been affirmed by the High Court except for the first and the third accused who have been convicted under Section 302 read with Section 34 of the IPC with life imprisonment and under Section 326 read with Section 34 of the IPC for causing grievous injuries with imprisonment of five years. Aggrieved by the said conviction, the accused persons have preferred this appeal.

The Trial Court recorded that the prosecution had failed to prove its case beyond all reasonable doubts and as such all are entitled to benefit of doubt. Accordingly, all were acquitted. In the criminal appeals preferred by the State, the acquittal of all accused was affirmed except for first and third accused. Hence, present appeals.

After considering the submissions, the Bench noted that in view of Section 235(2) 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.

The Apex Court accepted that the appellate court 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”, added the Court.

The Bench observed that the Trial Court is duty bound to adjourn the matter to a future date after recording the conviction so as to call upon both sides to hear the question of the sentence before sentencing the accused persons.

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”, added the Bench.

Observing that the Trial Court has recorded acquittal of all accused upon a careful appreciation of the entire evidence on record with which the High Court had not found fault, the Bench observed that “the appellate court committed an error of law in recording conviction of first and third accused merely for the reason that their presence and participation in the crime was proved by the evidence of one of the witnesses”.

The Bench further noted that the case of the third accused 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.

Rather, 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, added the Bench.

Accordingly, the Apex Court observed that the High Court in the exercise of its appellate jurisdiction could not have interfered with the acquittal of the accused persons so as to convict them, and therefore, set aside the judgment passed by the High Court.

Cause Title: Fedrick Kutinha v. State of Karnataka

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