PARBAT LAXMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The convictions of accused Nos. 1 2 and 6 are challenged in appeal and the State also challenges the finding of acquittal of accused Nos. 3 4 5 7 and 8. Now we will turn to appeal by the State against the acquittal of accused Nos. 3 4 5 7 and 8. We have already given reasons for agreeing with the finding of the learned Sessions Judge that this is not a case of unlawful-assembly nor a case where all the eight accused were actuated by common intention to cause the murder of Ruda. The learned Sessions Judge was therefore right in not imputing any constructive liability to accused Nos. 3 4 7 and 8 in regard to the deaths of Ruda Punja and Vira and it is also not the case of the prosecution that these accused caused any fatal injuries to any of the deceased persons. The learned Sessions Judge was therefore right in acquitting accused Nos. 3 4 5 7 and 8 in respect of the charge relating to the deaths of Ruda Punja and Vira. But the learned Assistant Government Pleader however contends that in regard to Rama injuries had been caused to Ruda by Bhagwan and Rama and that both Bhagwan and Rama are therefore responsible for causing the death of Ruda. He also contends that as there was common intention on the part of Rama and Bhagwan to cause the death of Punja Rama is also guilty under sec. 302 for causing the death of Punja. Similarly it is contended that Rama Laxman would be guilty under sec. 302 read with sec. 34 I. P. Code for causing the death of Ruda as he shared with Bhagwan the common intention to cause the death of Ruda The State has not filed any appeal against the acquittal of Rama Laxman for the offence of causing the deaths of Ruda and for the offence of causing the death of Punja. The learned Assistant Government Pleader however contends that as Rama Laxman had filed an appeal against his conviction it is open to the High Court in appeal to alter the finding- regarding his acquittal of the offence of causing the death of Ruda. It. is urged that as Rama Laxman has appealed against his conviction under sec. 302 I. P. Code for causing the death of Punja it is open to the- High Court in such a case to alter the finding of the acquittal of Rama Laxman of the offence of causing the deaths of Vira and Rama to one of conviction although the State has not filed an appeal against such acquittal. In support of this contention the learned Assistant Government Pleader relies on three Full Bench decisions namely (1) Zamir Qasim v. Emperor A. I. R. 1944 Allahabad 137 (2) Bawa Sing v. Emperor A. I. R. 1941 Lahore 465 and (3) Fauja Singh v. The State A. I. R. 1951 Pepsu 154 and on a decision of a single Judge of the Madras High Court in In re Lakshmiah and another A. I. R. 1952 Madras 101 The question turns upon the construction of sec. 423 Criminal Procedure Code. It provides that the appellate Court may (a) in an appeal from an order of acquittal reverse such order and direct that further inquiry be made or that the accused be retried or committed for trial as the case may be or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction (1) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial or (2) alter the finding maintaining the sentence or with or without altering the finding reduce the sentence or (3) with or without such reduction and with or without altering the finding after the nature of the sentence but subject to the provisions of sec. 106 sub-section (3) not so as to enhance the same; (c) in an appeal from any other order alter or reverse such order; (d) make any amendment or any consequential or incidental order that may be just or proper. This section deals with powers of Appellate Court in disposing of appeals from an order of acquittal or conviction. Sub. cl. (a) provides that where an appeal is from an order of acquittal the order may be reversed and the accused may be re-tried or committed for trial or may be found guilty and sentenced or a further inquiry may be ordered. Sub-cl. (b) of the said sub-sec. (1) of sec. 423 deals with an appeal from a conviction and provides that the finding and sentence may be reversed or the finding may be altered and the sentence maintained or reduced or the finding confirmed and the sentence reduced or with or without altering the finding the nature of the sentence may be altered. Excluding from consideration the alteration relating to sentence the finding in an appeal from a conviction can be reversed altered or confirmed. Section 423 Cri. Pro.Code exhaustively describes the powers of Appellate Court in disposing of appeal whether it be an appeal from acquittal or from an order of conviction. The section clearly shows that a clear distinction is made between `alteration and `reversal of a finding. The word alter is used in a sense distinct from the word `reverse. The word reverse means a complete change in substance and form while the word alter means a change in form without changing the underlying character of the thing to be changed. The word `reverse is used in the sense of complete annulment or effacement. Sub-section (b) of sec. 423(1) Cri. Pro. Code clearly shows that in an appeal from a conviction where the finding of conviction is the subject matter the Appellate Court may reverse or alter the finding. The words used are `the finding and not `any finding. It is difficult to hold that sub-sec. (b) justifies the reversal of any finding. To take any other view would mean that in an appeal from conviction the appellate Court may reverse two findings e.g. if the trial Court has acquitted the accused of one offence and convicted him of a second offence to hold that the Appellate Court can reverse the finding of the conviction and at the same time reverse the finding of acquittal would mean that the- Appellate Court would reverse two findings one of conviction and the other of acquittal. The words used in sub-section (b) are `the finding and not `any finding. Moreover the clause which permits the appellate Court to alter the finding also provides that the finding may be altered provided the sentence is maintained or reduced. If the finding of acquittal is to be altered the sentence cannot be maintained or reduced at the same time because in the case of an order of acquittal there is no sentence at all. If the finding of acquittal is altered to a finding of conviction with an appropriate sentence the expression alter the finding maintaining the sentence cannot apply. This also makes it clear that when the expression `alter the finding maintaining the sentence is used by the Legislature it contemplated only an alteration of the finding of the conviction which was appealed against and which was the subject matter of the appeal. When a person files an appeal from the order of his conviction he is challenging the order of conviction and it is only that finding of conviction which is the subject matter of the appeal. If the view that the expression `alter the finding includes an alteration of the finding of acquittal is accepted it would mean that Appellate Courts other than the High Court could alter the finding of acquittal to one of conviction because sec. 423 Cri. Pro. Code deals with powers of all Appellate Courts and not merely of the High Court sitting as Appellate Court. An Appellate Court other than the High Court cannot alter the finding of acquittal to one of conviction. Sec. 417 Cri. Pro. Code deals with appeal in case of acquittal and as observed by their Lordships of the Privy Council in Kishan Singh v. Emperor I.L.R. 50 Allahabad 722 sec. 417 Cri. Pro. Code deals with appeals from a complete acquittal as well as appeals from a partial acquittal. Their Lordships of the Privy Council in 50 All. 722 have clearly laid down that where a man is tried of a more serious offence and is convicted of less serious one he must be held to have been acquitted of the more serious offence and that the acquittal cannot be set aside except Upon an appeal filed by the State Whether the acquittal is complete or partial it can be set aside only in an appeal filed by the State. In the Criminal Procedure Code of 1861 also the corresponding section 419 provided that the appellate Court may alter or reverse the finding and sentence or order on such Court but not so as to enhance any punishment that shall have been awarded. The language used in section 419 of the Act of 1861 was similar to that used in section 423(1)(b) which is now under discussion. In the Code of 1861 no appeal against an order of acquittal was provided for. Under that Code there was no right even for the State to file an appeal against acquittal. The right of appeal from acquittal was first conferred on the Local Government in the Code of 1872. Even if there was no right of appeal in the Code of 1861 that Code provided that the Appellate Court may alter or reverse the finding and sentence or order of such Court but not so as to enhance any punishment. In the Code of 1861 it is clear that the words alter the finding had no reference to any finding of acquittal. There can be various types of alterations of findings. An accused person may be charged with one offence and convicted of that offence. Such simple cases do not cause any difficulty. A person may be charged with a major offence and convicted of a minor offence. For instance he may be charged under sec 302 I. P. Code and convicted under sec. 304 I. P. C. and if the accused files an appeal against his conviction under the minor offence the appellate Court cannot change the finding of acquittal under the major offence into a conviction for the major offence as decided by the Privy Council in I. L. R 50 All. 722. An accused person may be charged with a minor offence and convicted of that minor offence. In such a case there is no order of acquittal of the trial Court and that case also does not cause any difficulty. An accused person may be charged for the offences mentioned in sec. 236 Cri. P. C. which section reads as under:- If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offence and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences. For example a person may be charged in the alternative under sec. 379 or sec. 411 I. P. Code in respect of certain item of stolen property or he may be charged both under sec. 379 and sec. 411 I. P. Code in respect of that item of stolen property or he may tie charged in the alternative either under section 379 or under sec. 411 in respect of that property. The trial-Court may acquit him under sec. 379 and convict him under sec. 411 I. P. Code. The question is whether the appellate Court can in such a case reverse the conviction under section 411 and also reverse the acquittal under sec. 379 and convict him under sec. 379. It may appear strange that in such a case the appellate Court is not entitled in an appeal from conviction to convict accused under sec. 379 instead of sec. 411 I. P. Code. But the powers of the appellate Court are to be found in sec. 423 Cri. P. Code. There is no real difficulty in such a case. It is open for the State to file an appeal from the acquittal of the offence under sec. 379 By not filing an appeal against the acquittal under sec. 379 the State accepts that the acquittal of the accused under sec. 379 was correct. In any case when the accused person who had been acquitted for the offence under sec. 379 and convicted under sec. 411 I. P. Code files an appeal from his conviction under sec. 411 he is only challenging the conviction under sec. 411 and the subject matter of his acquittal of the offence under sec. 379 I. P. Code is not before the Appellate Court. In such a case it is not open to the appellate Court to go into the question whether his acquittal of the offence under sec. 379 is correct or not because he has been acquitted of that offence by the trial Court and there has been no appeal against that acquittal. The accused has filed an appeal only against his conviction under sec. 411 and the only question before the appellate Court is whether the conviction of the accused under sec. 411 is correct or not and whether if it is correct the sentence should be reduced. Another case may arise where an accused person is charged with having committed one offence in respect of one criminal act and another offence in respect of a different criminal act in the course of the same transaction. If he is convicted of the offence of one criminal act and acquitted of the second criminal act and if he files an appeal against the former it is only that conviction which is the subject matter of the appeal. The facts relating to the acquittal in respect of the second criminal act are not before the appellate Court and it is not open to the appellate Court to convert the acquittal in respect of the second criminal act into one of conviction when there is no appeal by the State against that acquittal. To give another illustration if an accused person is charged with having kidnapped a girl and with having also committed rape on her the trial Court may convict him of rape and acquit him of the offence of kidnapping. Trial Court may acquit him of rape and convict him of kidnapping The trial Court may convict him for both the offences. If the trial Court convicts him of one offence and acquits him of the other and if the accused files an appeal against his conviction the facts relating to the criminal act in respect of which he has been acquitted are not befo-re the appellate Court for decision and it is not open to the appellate Court to set aside the acquittal in respect of the second criminal act when there is no appeal by the State against that acquittal. To hold that the appellate Court has such power would mean to hold that the appellate Court can reverse two findings namely the finding of the conviction and also the finding of acquittal. This is certainly contrary to the language used in sec. 423 Cri. Pro. Code. Another illustration can also be given namely a person is charged for the offence under sec. 325 I. P. Code but the trial Court acquuits him of that offence and convicts him of the offence under sec. 335 I. P. Code for having caused grievous hurt on grave and sudden provocation. This is really an illustration of the type of the case where the accused is charged with a major offence and is convicted of a minor offence and acquitted of the major offence.

(2.) Now we will turn to the case of Zamir Qasim v. Emperor A.I.R. 1944 Allahabad 137 This is a Full Bench case of the Allahabad High Court and the Full Bench recognised that the word alter used in sec. 423 means change in form and that is a less radical expression than the word reverse. Iqbal Ahmed C. J. observed that the two words were used in contra-distinction to each other and in two different senses. He observed that to his mind it is perfectly clear that the word reverse has been used to connote complete annulment or effacement and the words reverse the finding and sentence in sub-clause (1) of sec. 423 (1) (b) must therefore men total obliteration of the finding of conviction recorded. He also states that the word alter is a less radical expression than the word reverse and means change in form without changing the underlying character of the thing to be changed. He also agrees that the word the finding in the above expression must refer to the finding of conviction recorded by the trial Court. But he thought that the word alter in the context in which it occurs has a different meaning. He also states that the words maintaining the sentence which find a place after the words alter the finding do in his judgment clearly indicate that the altered finding must also be a finding of conviction otherwise it would be impossible to maintain the sentence. it is difficult therefore to understand how he came to the opposite conclusion that the words alter the finding in sub-clause (b) of sec. 423(1) include alter the finding of acquittal to a finding of conviction. According to him the words the expression alter the finding includes a reversal of the finding of acquittal. The scope of the expression alter the finding in sub-clause (b) of sec. 423(1) Cri. P. C. should be considered without taking into consideration sub-section (4) of sec. 439 Cr. P. C. Even if we consider the provisions of sub-section (4) of sec. 439 Cr. P. C. there is no justification for the view that in an appeal from a conviction it is open to the appellate Court to reverse a finding of acquittal. Sec. 439 Cr. P. C. which gave to the revising Court the powers of an appellate Court conferred by sec. 123 excluded the power to convert a finding of acquittal into a finding of conviction. But for sub-section (4) of sec. 439 Cr. P. C. it would be open to argue that the power to alter a finding of acquittal into a finding of conviction conferred by sub-section (1)(a) of sec. 423 can also be exercised by a revising Court. The effect of sub-section (4) of sec. 439 Cr. P. C. is to take away the power conferred by sec. 423 (1)(a) and not the power conferred by sec. 423 (1)(b). The learned Chief Justice seems to think that if a trial Court convicts an accused person under sec. 335 and acquits him under sec. 325 on appeal by the accused the appellate Court while acquitting the accused under sec. 335 should not be powerless to convict him under sec. 325 and that he cannot assent to an interpretation that leads to such obvious anomalies. There is really no anomaly if the State does not choose to file an appeal against the acquittal of the offence under sec. 325. One of the arguments advanced by Dar J. in the Full Bench case of Allahabad is as follows:

(3.) In such cases there is no manifest failure of justice having regard to the fact that the State has not filed an appeal from acquittal. Another argument considered by Dar J. was expressed in the following words: There is no valid reason why the word finding should be taken to mean the section of statute alone and why it should not include the conclusions of the Court on facts which constitute the offence the conclusion of the Court that the accused is not innocent but he is guilty and lastly the conclusion of the Court that the offence falls within a particular section of the statute. If this meaning be given to the word finding then in cases in which the appellate Court accepts in part or in whole the conclusion of the Court below as to facts constituting the offence and when it maintains in its entirety the conclusion of the trial Court that the prisoner is guilty and not innocent but differs as to the conclusion with regard to the section of statute which is applicable to the offence the appellate Court in such a case in pith and substance is only altering the finding of the Court below and is not reversing it. The other assumption is that in 50 All. 722 the Privy Council approved the statement of law that the only way in which a finding of acquittal can be altered or reversed is by a Government appeal. In my opinion the assumption is also not justified. A similar view was taken in Fauja Singh v. The State A. I. R. 1951 Pepsu 154 where it is observed: In the case of a conviction the finding is divisible into two parts (1) that he has committed an offence and (2) that the offence falls within the purview of a particular section of a particular enactment. There is a fallacy in this reasoning because there cannot be a finding merely that the accused had committed an offence. There can be a finding that the accused had committed a particular offence. There cannot be a finding of guilty without stating what the offence is. Unless we know the defintion of the offence and its ingredients we cannot say that the accused had committed that offence or any offence. In the Lahore Full Bench case of Bawa Singh v. Emperor A. I. R. 1944 Lahore 465 they dealt with the illustrative case where an accused person is charged under sec. 325 and convicted under sec. 335. In such cases there is no anomaly if the appellate Court comes to the conclusion that it could not convict the accused under sec. 325 although it came to the conclusion that in law the facts found did not amount to grave andsudden provocation. The trial Court having held that the facts amounted to grave and sudden provocation and the accused not having challenged that finding in appeal it is difficult to say how it is open to the appellate Court to hold that on facts found there was no grave and sudden provocation. Another argument advanced in the Lahore case is as follows: In the case of an appeal from acquittal it is obvious that the appeal might be directed against both a complete acquittal and a partial acquittal: that is to say a man might be charged under sec. 302 and completely acquitted of any offence or a man might be charged under sec. 302 and convicted say under sec 304. In the former case where there was a complete acquittal it will be necessary to give the appellate Court power to reverse the acquittal that is to say set aside the finding that the man is innocent and find him guilty. In the second case it is not necessary to set aside any finding that the man is innocent for exhypothesi the man has been found guilty of an offence. All that is necessary is for the appellate Court to determine of what offence he is to be found guilty and for this purpose all that is necessary is for power to be given to the appellate Court to alter the finding thereby ensuring that the man shall be found guilty of the offence of which he really is guilty according to the finding of the appellate Court. In the case contemplated in sec. 423(1) (b) it is obvious that there is no question of a complete acquittal for the appeal is against a conviction and in this case therefore there is no necessity to annul or set aside any finding that the man is innocent or not guilty of anything at all. All that is necessary is to find the proper offence of which he could be held to be guilty on the findings of the appellate Court. Hence there is no reason to give any power to the appellate Court to reverse a finding of innocent. All that is needed is given by the words alter the finding that is to say power is given to the appellate Court to alter the finding to whatever find ing it considers on the facts found applied to the offence committed by the accused. There is no need to imagine that any restriction is put upon the nature of the finding to be given by the appellate Court. Here again there is a fallacy in this reasoning because a person cannot be convicted of an of offence without knowing what the definition of the offence is and what the ingredients of the offence are. The next case is a decision by the Single Judge of the Madras High Court in In re Lakshmiah A.I.R. 1952 Madras 101 It is observed that in 50 All. 722 their Lordships of the Privy Council were dealing with the revisional jurisdiction of the High Court and not the jurisdiction of the appellate Court. But the Privy Council has clearly laid down that the expression appeal from acquittal includes an appeal from a complete acquittal as well as an appeal from a partial acquittal. The Single Judge of the Madras High Court thought he was bound by the decisions in In Appana v. Mahalakshmi I. L. P. 34 Mad. 544 and In Hannumappa v. Emperor I.L.R. 35 Mad. 243. We might also refer to the cases of Pulo Singh v. The State A.I.R. 1956 Patna 170 where the view taken by us has been taken and Emperor v. Ismail Khadirsab 30 Bombay Law Reporter 330 where there are a few observations which are consistent with our view. In 30 Bombay Law Reporter 330 at p. 334 it is observed as under: No doubt as remarked in Boys Code of Criminal Procedure Vol. II p. 563 the words find him guilty may be said to most naturally mean find him guilty of the offence. the acquittal in regard to which is being reversed. But the learned author goes on to say: Is there any reason why the same principles should not be applied here as apply to appeals by a convict ? Under cl. (b) of sub-sec. (1) the appellate Court can alter the finding that is alter the conviction under a certain section to one under another and of course for that purpose it may avail itself of the provisions of sec. 237 of the Criminal Procedure Code.