Supreme Court of India
KANUBHAI BHAGVANBHAI NAYAK versus STATE OF GUJARAT on 3 December 2018
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AKANUBHAI BHAGVANBHAI NAYAK
v.
STATE OF GUJARAT
(Criminal Appeal No. 1540 of 2018)
BDECEMBER 03, 2018
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Penal Code, 1860: s.302 – Conviction under s.302 by trialcourt – High Court confirmed conviction and sentence – Appealagainst conviction on the ground that in the order of High Court,Cthere was neither any reference of any evidence, nor its applicationand nor there was any discussion much less finding in the impugnedorder – Held: In view of the powers of the Appellate Court unders.386(b), Cr.P.C., the High Court ought to have examined theevidence of each prosecution witnesses on issues arising in the caseDand the same should have been examined in the light of the challengemade by the accused in appeal and then recorded a finding eitherof affirmation or modification or reversal, as the case may be – Itwas incumbent upon the High Court to deal with issues urged andthen record its finding one way or the other keeping in view the law– Impugned order is set aside and matter remitted to High Court forEfresh consideration – Code of Criminal Procedure, 1973 – s.386(b).Allowing the appeal and remanding the matter to HighCourt, the Court HELD: 1. The High Court neither discussed any issueFarising in the case nor appreciated the evidence and nor recordedits findings on any of the issues arising in the case and urged bythe appellant. Mere perusal of the impugned order indicated thatthe High Court first set out the post mortem report and on itsperusal observed that the injuries on the body of the deceasedrevealed that the death was homicidal leading to murder. TheGCourt then observed that the evidence led by “various witnesses”revealed that it was the accused who was present at the scene ofthe offence and carried the attack on deceased. The High Courtthen observed that since the Additional Sessions Judge had“minutely examined” all the evidence led by the prosecution andHhas given cogent and convincing reasons, the High Court is in
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complete agreement with the view taken by the AdditionalSessions Judge. It is only with this narration of facts, the HighCourt dismissed the appeal. [Para 9][454-F-H]
2. In view of the powers of the Appellate Court underSection 386 (b) of the Code of Criminal Procedure, 1973, theHigh Court should have examined the evidence of eachprosecution witnesses on issues arising in the case and the sameshould have been examined in the light of the challenge made bythe accused in appeal and then a finding should have beenrecorded either of affirmation or modification or reversal, as thecase may be. [Para 10][455-A-B]
3. The High Court, is empowered in its appellate jurisdictionto examine the issues of facts and law while examining the legalityand the correctness of the impugned order. It is equallyincumbent upon the Division Bench to deal with issues urgedand then record its findings one way or the other keeping in viewthe law laid down by this Court which governs the issues.[Para 12][455-C-D]
CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1540 of 2018.
From the final Judgment and Order dated 25.04.2016 of the HighCourt of Gujarat at Ahmedabad in Criminal Appeal No.1512 of 2011.
Ms. Vibha Datta Makhija, Sr. Adv., Aftab Ali Khan,M. Z. Chaudhary, Sajid Imam Naqvi, Ms. Disha Vaish, Ms. Heena Khan,Advs. for the Appellant.
Ms. Puja Singh, Ms. Hemantika Wahi, Ms. Jesal Wahi,Ms. Vishakha, Advs. for the Respondents.
The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.
1. Leave granted.
2. This appeal is filed against the final judgment and order dated25.04.2016 passed by the High Court of Gujarat at Ahmedabad in CriminalAppeal No.1512 of 2011 whereby the Division Bench of the High Courtdismissed the appeal filed by the appellant herein and confirmed theorder of conviction and sentence dated 30.09.2011 passed by the 9thAdditional Sessions Judge, Vadodara in Sessions Case No.101 of 2010.
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454 SUPREME COURT REPORTS [2018] 14 S.C.R.
A3. Few facts need mention hereinbelow for the disposal of theappeal.
4. By impugned order, the Division Bench of the High Courtdismissed the criminal appeal filed by the appellant (accused) andconfirmed his conviction and sentence awarded by the 9th AdditionalBSessions Judge, Vadodara in Sessions Case No. 101/2010 under Section302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”)which gave rise to filing of the present appeal by way of special leave bythe appellant(accused) in this Court.
5. The question, which arises for consideration in this appeal, isCwhether the High Court was justified in dismissing the appeal filed bythe accused and thereby was justified in confirming the conviction andthe sentence awarded by the Additional Sessions Judge.
6. Heard Ms. Vibha Datta Makhija, learned senior counsel forthe appellant and Ms. Puja Singh, learned counsel for the respondent.D7. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal, setaside the impugned order and remand the case to the High Court fordeciding the criminal appeal afresh on merits.
8. The need to remand the case has been occasioned because weEfind that the Division Bench has neither discussed any issue arising inthe case nor appreciated the evidence and nor recorded its findings onany of the issues arising in the case and urged by the appellant.
9. Mere perusal of the impugned order would indicate that theDivision Bench has first set out the post mortem report and on its perusalFobserved that the injuries on the body of the deceased reveal that thedeath was homicidal leading to murder. The Division Bench thenobserved that the evidence led by “various witnesses” reveal that it wasthe accused who was present at the scene of the offence and carriedthe attack on deceased. The Division Bench then observed that sincethe Additional Sessions Judge had “minutely examined” all the evidenceGled by the prosecution and has given cogent and convincing reasons, theHigh Court is in complete agreement with the view taken by the AdditionalSessions Judge. It is only with this narration of facts, the Division Benchdismissed the appeal.
10. In our opinion, keeping in view the powers of the AppellateCourt under Section 386 (b) of the Code of Criminal Procedure, 1973,the Division Bench should have examined the evidence of eachprosecution witnesses on issues arising in the case and the same shouldhave been examined in the light of the challenge made by the accused inappeal and then a finding should have been recorded either of affirmationor modification or reversal, as the case may be.
11. There is neither any reference to any evidence, nor itsappreciation and nor there is any discussion much less finding in theimpugned order.
12. The High Court, in our opinion, is empowered in its appellatejurisdiction to examine the issues of facts and law while examining thelegality and the correctness of the impugned order. It is equally incumbentupon the Division Bench to deal with issues urged and then record itsfindings one way or the other keeping in view the law laid down by thisCourt which governs the issues.
13. We, therefore, find ourselves unable to concur with such disposalof the appeal and feel inclined to set aside the impugned order and remandthe case to the Division Bench of the High Court with a request todecide the appeal afresh on merits in accordance with law.
14. Having formed an opinion to remand the case, we do notconsider it proper to go into the merits of the case. We, therefore, leaveall the issues open to be decided by the Division Bench on merits, inaccordance with law uninfluenced by our observations.
15. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. Impugned order is set aside. We request theHigh Court to dispose of the appeal as expeditiously as possible preferablywithin six months.
16. Pending application(s), if any, stand(s) disposed of.
Devika Gujral
Matter remanded to High Court.
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