1. This criminal revision is directed against the judgment and order of Mr. Vikas Goswami, the IVth Additional District and Sessions Judge, Kasganj dated 13.01.2020, dismissing Criminal Appeal no.12 of 2018 and affirming a judgment and order of conviction and sentence passed by the Magistrate against the revisionists for an offence punishable under Section 326/34 IPC.
2. Heard Mr. A.K.S. Bais, Advocate holding brief of Mr. Nirbhay Singh, learned Counsel for the revisionists and Mr. S.S. Tiwari, learned A.G.A. appearing on behalf of the State.
3. Looking to the short point involved in this revision, it would not be apposite to set out in detail the prosecution case or the evidence. It is a case, where the two revisionists have been tried and convicted by the Magistrate for an offence punishable under Section 326 read with Section 34 IPC and sentenced to suffer rigorous imprisonment for a term of three years each and a fine of Rs.3000/-. In default, each of the revisionists have been sentenced to undergo three months' rigorous imprisonment. They were acquitted by the Magistrate of offences punishable under Sections 504 and 506 IPC.
4. The submission of Mr. A.K.S. Bais, Advocate holding brief of Mr. Nirbhay Singh, learned Counsel for the revisionists is that the Appellate Court has not discharged its duties under the Code of Criminal Procedure (for short, 'the Code') to do a wholesome review of the evidence on record and has perfunctorily upheld the conviction. Mr. S.S. Tiwari, learned A.G.A., on the other hand, has said that the Appellate Court has done a complete survey of the evidence led at the trial and expressed his concurrence with the Trial Court. Mr. Tiwari submits that being a judgment of affirmation, the Appellate Court was not required to do a detailed re-analysis or an analysis of the entire evidence on record afresh. He, therefore, supports the impugned judgment and says that there is no scope for this Court to interfere in the present revision against the concurrent judgments of the two Courts of fact below. The only point that arises for determination in this revision is about the duties of the Appellate Court under Section 374 of the Code, while hearing and determining an appeal from a judgment of conviction.
5. This Court has carefully perused the impugned judgment and the record as well. It is true that the Appellate Court has not done any reassessment of evidence afresh, but has merely surveyed it. That the Appellate has done by detailing the evidence in the judgment. There is hardly any appraisal done by the Appellate Court to find out for itself, whether the prosecution have successfully established the charge against the revisionists, of which they have been convicted by the Trial Court. Rather, the Appellate Court has expressed its agreement with the Magistrate with remarks to the effect that a criminal appeal can be accepted only if it is shown that the Trial Court has committed any error of fact or law that is manifest, or ignored evidence on record and passed a wrong and illegal order. The Appellate Court has further remarked that a criminal appeal cannot be allowed solely on the ground that a different view of the evidence is possible. The crux of the learned Sessions Judge's determination in appeal is expressed in the following words in the judgment impugned:
"यह विधि का सुस्थापित सिद्धान्त है कि किसी अपील में, अपील का निस्तारण करने के समय अपील तभी स्वीकार की जा सकती है जब विद्वान अवर न्यायालय के आदेश में ऐसी कोई गलती, विधि तथ्यों की स्पष्टतः दर्शित हो कि पत्रावली पर उपलब्ध साक्ष्य को अनदेखा करके गलत व अवैध रूप से आदेश पारित किया गया केवल इस आधार पर कि उपलब्ध साक्ष्य के आधार पर दूसरा दृष्टिकोण भी सम्भव है। इस आधार पर अपील स्वीकार नहीं की जा सकती।"
6. The way, the Appellate Court has opined about the law relating to the duties of the Appellate Court, while hearing an appeal from a judgment of conviction, it has gone utterly wrong. In an appeal from a judgment of conviction, the Appellate Court is required not only to review, but re-appreciate the entire evidence on record afresh, and determine for itself, whether the prosecution have succeeded in establishing the charge against the appellant beyond reasonable doubt. Contrary to what the Appellate Court has said, if two views of the evidence are possible, certainly the Appellate Court is duty bound to take the view that favours the accused. This is in keeping with the presumption of innocence of the accused and the jurisdiction that Court exercises in an appeal from conviction, where the entire case is at large for a plenary re-appraisal. The parameters, by which the Appellate Court has judged the revisionists' appeal, would be those applicable to a Court of revision or may be to the Appellate Court in some measure, if it were hearing an appeal from a judgment of acquittal; not of conviction. In this connection, reference may be made to the decision of the Supreme Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603. In Lal Mandi, it has been held by their Lordships:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the appellate court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh case [(1987) 2 SCC 529 : 1987 SCC (Cri) 381 : AIR 1987 SC 1083] , which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of an accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty-bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An appellate court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence........"
7. In the opinion of this Court, the Appellate Court has gone utterly wrong about the standard, by which it had to judge the revisionists' appeal. The impugned judgment cannot, therefore, be sustained. However, since the Appellate Court has not yet discharged its sacrosanct duties of doing a complete independent re-appraisal of evidence, it is not for this Court to put a terminus to the proceedings. The case must go back to the Appellate Court for determination of the appeal afresh, after setting aside the impugned judgment. It must also be noticed that pending appeal, the revisionists were on bail and were taken into custody when their appeal was dismissed. They were not admitted to bail by this Court, pending revision and are in jail. They are entitled to remain on bail, pending a re-hearing of their appeal, upon furnishing such bail bonds and sureties as the Appellate Court may direct, and which the Appellate Court shall do forthwith.
8. In the result, this revision succeeds and is allowed in part. The impugned judgment and order dated 13.01.2020 passed by the learned IVth Additional District and Sessions Judge, Kasganj in Criminal Appeal no.12 of 2018 is hereby set aside. The appeal shall stand restored to the file of the Appellate Court with a direction to re-hear and determine the appeal within six months next, in accordance with law. Pending appeal, the revisionists shall be released on bail forthwith on furnishing such bail bonds and sureties as the Appellate Court may direct.
9. Let a copy of this judgment be certified to the Appellate Court by the office and also communicated by the Registrar (Compliance).
10. Let the lower court records be sent down at once.
Order Date :- 16.8.2021 Anoop