SMT. SHARDA DEVI Vs. STATE

JUDGEMENT

(1.) The following question has been referred by a learned Single Judge for decision by a larger Bench:

(2.) This very question was answered by a Full Bench in Gulab Vs. State, AIR 1951 Allahabad 660 (FB) in the affirmative. Shankar Saran and Bindbasni Prasad, II., two of the learned Judges constituting the Full Bench relied upon the majority view in Zamir Qasim Vs. Emperor, AIR 1944 Allahabad 137 (FB) in answering the question in the affirmative but Harish Chandra, J. arrived at the same conclusion independently of Zamir Qasim's case. In Zamir Qasim's case the majority held that an appellate court is, subject to other provisins contained in the Crimial P.C. empowered u/S. 423(1)(b) to alter a finding of acquittal into one of conviction even though no appeal has been preferred by the Government, subject to the condition that it cannot enhance the sentence imposed. In State of Andhra Pradesh Vs. Thadi Narayana, A.I.R. 1962 SC 240 the Supreme Court ha taken a view contrary to the majority view in Zamir Qasim's case and has held that in exercising the power conferred by Sec. 423(1) (b) the appellate court cannot convert an acquittal into a conviction. It is because of the reversal of the majority view in Zamir Qasim's case upon which the opinion of two of the learned Judges in Gulab's case was founded that the learned Singh Judge thought that the decision in Gulab's case also requires reconsideration. If the matter had rested there we would have referred the question to a larger Bench.

(3.) Sri R.N. Mulla, learned counsel for the applicant, has strenuously contended that the that the question should be referred to a Full Bench. He has urged that once an accused has been acquitted of an offence and no appeal is preferred against the acquittal then the acquittal as well as the finding on which the acquittal is based are final and cannot be examined or altered. This does not appear to be the correct position in view of the Supreme Court decision. A question similar to the one referred by the learned Single Judge arose for consideration before the Supreme Court in Sunder Singh Vs. State of Punjab, A.I.R. 1962 SC 1211. In this case four persons including one Rachhpal Singh were tried for an offence u/S. 302/34 IPC. The trial court acquitted Rachhpal Singh but convicted the other three. No appeal was filed against the acquittal of Rachhpal Singh but the three convicted persons preferred an appeal. The High Court held that the three appellants and Rachhpal Singh had the common intention to commit the offence and it was inclined to take the view that Rachhpal Singh had been wrongly given the benefit of doubt by the trial court. It was urged before the Supreme Court that Rachhpal Singh having been acquitted and no appeal having been filed against his acquittal the High Court had no jurisdiction in an appeal by the convicted persons to reverse the finding of the trial court and to hold that Rachhpal Singh was present at the scene of the occurrence and shared the common intention with the three appellants, as alleged by the prosecution. Repelling this contention the Supreme Court observed:-