# [1960] 3 S.C.R. 130

- **Citation:** [1960] 3 S.C.R. 130
- **Court:** Supreme Court of India
- **Decided:** 1957-11-19
- **Case number:** Criminal Appeal No. 14 of 1959
- **Bench:** B. P. Sinha, Jafer Imam, J. 0. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1960-3-s-c-r-130-1820
- **Pages:** 8

## Headnote

Criminal Appeal-If can be admitted and heard on question of
sentence only-Code of Criminal Procedure (V of I898), ss. 4I8(I),
4I9, 42I, 422.
The appellant was convicted under s. 304 Part I of the
Indian Penal Code and sentenced to imprisonment for life by the
trial Court. His appeal to the High Court was admitted only on
the question of sentence and at the hearing the .sentence was
reduced to ro years' imprisonment. On appeal by special leave
the appellant contended that his appeal in the High Court could
not, in Jaw, be admitted on the question of sentence only and
that he was entitled to be heard on the merits of the case also.
Held, that having regard to the provisions of the Code of
Criminal Procedure while an Appellate Court had power to dismiss an appeal summarily if it considered that there was no
sufficient ground for interfering, it had no power to direct the
appeal to be heard on the question of sentence only.
The Appellate Court, after hearing the appeal had the power
in finally disposing of the appeal to reduce the sentence but was
not entitled to direct the appeal to be admitted only on the question of sentence. The appellant was entitled to have his appeal
heard on the merits in the High Court.
The King Emperor v. Dahu Raut, (1935) LR. 62 I.A. 129,
followed.
Najar Sheikh v. Emperor, (1914) I.LR. 41 Cal. 606, Gaya
Singh v. King Emperor, (1925) I.LR. 4 Pat. 254, and Su.dhir
Kumar Neogi and Another v. Emperor, A.LR. (1942) Pat. 46,
approved.
Bdl Dhankor v. Emperor, (1937) I.LR. Born. 365, not applicable.
0RIMIN4L
APPELLATE
JURISDICTION:
Criminal
Appeal No. 14 of 1959.
Appeal by special leave from the judgment and
order dated November 19, 1957, of the Bombay High
Court at Rajkot in Criminal Appeal No. 137 of 1957,
arising out of the Judgment and order dated August
31, 1957, of the Sessions Judge, Sorath Division, Junagadh, in Sessions Case No. 26 of 1957.
P. K. Chatterjee, for the appellant.
H.J. Umrigar and R. H. Dhebar, for the respondent.
3 S.C.R. SUPREME COURT REPORTS
131
.
1960, February, 26.
The Judgment of the Court
was delivered l5y
IMAM, J.-This appeal is by special leave. The
appellant was convicted under s. 304, Part I of the
Indian Penal Code and sentenced to imprisonment
for life. He appealed to the Bombay High Court.
According to the judgment of the High Court the
appeal was admitted only on the point of sentence.
The High Court reduced the sentence from imprisonment for life to 10 years' rigorous imprisonment.
It was submitted on behalf of the appellant that the
High Court could not, in law, admit an appeal only
on the point of sentence and the appellant was entitled
to have his appeal heard on the merits of his conviction as well. The evidence upon which the appellant
was convicted was unsatisfactory and he was entitled
to be acquitted.
Shortly stated, the case of the prosecution was that
the appellant had caused the death of Zina Hira on
April 6, 1957, when the deceased was returning from
an adjoining village to the village of his residence.
The appellant met 'him on the way and accused him
of having committed theft in the appellant's house
which the deceased denied. Upon this the appellant
attacked him with a stick which had iron rings round
it. A number of blows were given by the appellant
with this stick in consequence of which Zina Hira fell
down. Although a doctor was called for from Keshod,
8 miles away, ultimately the deceased was taken to
Junagadh for better medic_al treatment but died on
the way in the early hours of the morning of April 7.
According to the case of the appellant he was not
present at the scene of the crime and pleaded not
guilty to the charge.
According to the judgment of the High Court the
appeal of the appellant before it was admitted only
on the point of sentence. It was urged that this procedure adopted by the High Court was not in conformity with the provisions of ss. 421 and 422 of the
Code of Criminal Procedure. Reliance was placed
upon the decisions of the Calcutta

## Text

r960
130
SUPREME COURT REPORTS
RABARI GHELA JADAV
THE STATE OF BOMBAY
[1960]
(B. P. SINHA, C. J., JAFER IMAM AND
J. 0. SHAH, JJ.)
Criminal Appeal-If can be admitted and heard on question of
sentence only-Code of Criminal Procedure (V of I898), ss. 4I8(I),
4I9, 42I, 422.
The appellant was convicted under s. 304 Part I of the
Indian Penal Code and sentenced to imprisonment for life by the
trial Court. His appeal to the High Court was admitted only on
the question of sentence and at the hearing the .sentence was
reduced to ro years' imprisonment. On appeal by special leave
the appellant contended that his appeal in the High Court could
not, in Jaw, be admitted on the question of sentence only and
that he was entitled to be heard on the merits of the case also.
Held, that having regard to the provisions of the Code of
Criminal Procedure while an Appellate Court had power to dismiss an appeal summarily if it considered that there was no
sufficient ground for interfering, it had no power to direct the
appeal to be heard on the question of sentence only.
The Appellate Court, after hearing the appeal had the power
in finally disposing of the appeal to reduce the sentence but was
not entitled to direct the appeal to be admitted only on the question of sentence. The appellant was entitled to have his appeal
heard on the merits in the High Court.
The King Emperor v. Dahu Raut, (1935) LR. 62 I.A. 129,
followed.
Najar Sheikh v. Emperor, (1914) I.LR. 41 Cal. 606, Gaya
Singh v. King Emperor, (1925) I.LR. 4 Pat. 254, and Su.dhir
Kumar Neogi and Another v. Emperor, A.LR. (1942) Pat. 46,
approved.
Bdl Dhankor v. Emperor, (1937) I.LR. Born. 365, not applicable.
0RIMIN4L
APPELLATE
JURISDICTION:
Criminal
Appeal No. 14 of 1959.
Appeal by special leave from the judgment and
order dated November 19, 1957, of the Bombay High
Court at Rajkot in Criminal Appeal No. 137 of 1957,
arising out of the Judgment and order dated August
31, 1957, of the Sessions Judge, Sorath Division, Junagadh, in Sessions Case No. 26 of 1957.
P. K. Chatterjee, for the appellant.
H.J. Umrigar and R. H. Dhebar, for the respondent.
3 S.C.R. SUPREME COURT REPORTS
131
.
1960, February, 26.
The Judgment of the Court
was delivered l5y
IMAM, J.-This appeal is by special leave. The
appellant was convicted under s. 304, Part I of the
Indian Penal Code and sentenced to imprisonment
for life. He appealed to the Bombay High Court.
According to the judgment of the High Court the
appeal was admitted only on the point of sentence.
The High Court reduced the sentence from imprisonment for life to 10 years' rigorous imprisonment.
It was submitted on behalf of the appellant that the
High Court could not, in law, admit an appeal only
on the point of sentence and the appellant was entitled
to have his appeal heard on the merits of his conviction as well. The evidence upon which the appellant
was convicted was unsatisfactory and he was entitled
to be acquitted.
Shortly stated, the case of the prosecution was that
the appellant had caused the death of Zina Hira on
April 6, 1957, when the deceased was returning from
an adjoining village to the village of his residence.
The appellant met 'him on the way and accused him
of having committed theft in the appellant's house
which the deceased denied. Upon this the appellant
attacked him with a stick which had iron rings round
it. A number of blows were given by the appellant
with this stick in consequence of which Zina Hira fell
down. Although a doctor was called for from Keshod,
8 miles away, ultimately the deceased was taken to
Junagadh for better medic_al treatment but died on
the way in the early hours of the morning of April 7.
According to the case of the appellant he was not
present at the scene of the crime and pleaded not
guilty to the charge.
According to the judgment of the High Court the
appeal of the appellant before it was admitted only
on the point of sentence. It was urged that this procedure adopted by the High Court was not in conformity with the provisions of ss. 421 and 422 of the
Code of Criminal Procedure. Reliance was placed
upon the decisions of the Calcutta High Court and
Patna High Court in the ca13es of Nafar Sheikh v,
Rabari
Ghela jadav
v.
State of Bombay
Imam].
Rabari
Ghela Jadav
v.
State of Bombay
Imam].
132
SUPREME COURT REPORTS
[1?60]
Emperor (1), Gaya Singh v. King Emperor (2), Sudhir
Kumar Neogi and Another v. Emperor(') and Sheikh
Rijhu and Others v. Emperor(') and of the Privy Council in the case of The King-Emperor v. Daku Raut(').
Reference was also made to the decision of the Patna
High Court in the case of Kuldip Das v. King
Emperor (6) and the decision of the Bombay High
Court in the case of Bai Dhankor v. Emperor(').
In order to appreciate the submission made on behalf of the appellant reference to certain provisions
of the Code of Criminal Procedure in Chapter XXXI
concerning Appeals will be necessary. Under s. 418(1)
an appeal may lie on a matter of fact as well as a
matter of law, except where the trial was by jury, in
which case the appeal shall lie on a matter of law
only. It is unnecessary to refer to sub-s. (2) of this
section for the purposes of this ·appeal. Under s. 419
every appeal shall be made in the form of a petition
in writing presented by the appellant or his pleader
and every such petition shall (unless the Court to
which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed
against, and, in cases tried by a jury, a copy of the
heads of the charge recorded under section 367.
As
to what should follow on the presentation of such a
petition in will be necessary to quote the provisions of
ss. 421 and 422 of the Code.
Section 421 reads:
"421 (1) On receiving the petition and copy under
section 419 or section 420, the Appellate Court shall
peruse the same, and, if it considers that there is no
sufficient ground for interfering, it may dismiss the
appeal summarily:
Provided that no appeal presented under section
419 shall be dismissed ·unless the appellant or his
pleader has had a reasonable opportunity of being
heard in support of the same.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case,
but shall not be bmmd to do so."
(r) (rgr4) I.L.R. 4r Cal. 606.
(2} (I925) I.L.R. 4 Pat. 254.
(3) A.I.R. (1942) Pat 46.
(4)
A.LR. (1931) Pat. 351,
(S)
(1935) L.R. 62 I.A. 129.
(6) (1932) I.L.R. II Pat. 697.
(7) (1937)
l.L.R. Bom 365.
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...
3 S .. Q.R.
SUPRI5ME COURT REPORTS
133
Section 422 reads :
r960
" 422. If the Appellate Court does not dismiss
Rabari
the appeal summarily, it shall cause notice to be
Gkela Jadav
given to the appellant or his pleader, and to such
v.
officer as the State Government may appoint in this State of Bombay
behalf, of the time and place at which such appeal
will be heard, and shall, on the application of such
Imam J.
officer, furnish him with a eopy of the grounds of
appeal;
and, in cases of appeal under section 411A, subsection (2), or section 41,7, the Appellate Court shall
cause a like notice to be given to the accu_sed."
It is clear from these provisions that on receiving
the petition and a copy under s. 419, the Appellate
Court shall peruse the same and if it considers that
the11e is no sufficient ground for interfering it will dismiss the appeal summarily, and that if the Appellate
Court does n0t dismiss the appeal summarily, it shall
cause notice to be given to the appellant or his
pleader, and to such officer as the State Go~ernment
may appoint in this behalf. of the time and place at
which such appeal will be heard. The recording of •
an order that the appeal is admitted, when it is not
summarily dismissed, is not a happily chosen expression as was pointed out by. the Privy Council in ·the
case of 'The King-Emperor v. Dahu Raut (1 ).
Section
421 giv8s ample power to the Appellate Court to dismiss an appeal summarily if it considers that there is
no sufficient ground for interfering. On the other
hand, if it does not dismiss
the appeal summarily then it is obligatOJ'y upon it to cause notice
of the appeal to be given to the appellant and to
such officer as the State Government may appoint in
this behalf of the time and place at which such appeal
will be heard. These provisions do not contemplate a
partial summary dismissal of an appeal as was pointed
out by the Privy Council in the above-mentioned case
where it was stated by Lord Thankerton:
" The terms of the section equally exclude the
possibility of partial sun:unary dismissal, e. g., in so
far as the conviction is appealed against. Failing
summary dismissal, the provisions of ss. 422 and
423 apply and, in their l,iordships' opinion, the pro-
(1) [193~] L.R. 62 I.A. 129
I960
Rabari
Ghela Jadav
v.
State of Bombay
Imam].
•
134
SUPREME COURT REPORTS
(1960]
visions as to notices in s. 422 and the provisions as
to sending for the record in s. 423 are clearly
peremptory and there can be no room for revision
at that stage. "
It was, however, submitted on behalf of the State of
Bombay that the facts in the case before the Privy
Council can be distinguished from the facts of the
present case becauGe in the case before the Privy Council no notices were issued under s. 422 and the record
was not sent for in accordance with s. 423. In the
present case notices were issued under s. 422 and the
record was sent for in accordance with s. 423 of the
Code.
Particular reliance was placed upon the concluding portion of the Privy Council judgment to the
following effect :-
"Accordingly, their Lordships will humbly advise
His Majesty that the appeals should be allowed, and
that it should be declared that, upon the true construction of the Criminal Procedure Code, the Appellate Cpurt is entitled to dismiss an appeal summarily in terms of s. 421 unless the Court is satisfied
that there is no sufficient ground for interfering in
accordance with the relief sought in the appeal, and
that where the appeal is not dismissed summarily,
the court is bound, in order to the disposal of the
appeal, to comply with the provisions of s. 422 as to
notice, and with the provisions of s. 423 as to the
sending of the record, if such record is not already
in Court ...... "_
It seems to us, however, having regard to the provisions
of the Code, that while an Appellate Court has power
to dismiss an appeal summarily, if it considers that
there is no sufficient ground for interfering, it has no
power to direct, as in the case before us, that the appeal
shall be heard only on the point of sentence. Such an
order is not an order of summary dismissal under
s. 421 and neither is it an order in terms of s. 422 of
the Code. When an appeal is filed it is an appeal
against conviction and sentence and it is not permissible for an Appellate
Court to direct that it
shall be heard only on the question of sentence.
Our interpretation of ss. 421 and 422 is in keeping
with the interpretation of these sections by the
I- .
,.
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·-
-·I
-
--
3 S.C.R. SUPREME COURT REPORTS
135
-
Privy Council in Dahu Raut's case.
The decisions of
the Calcutta High Court and the Patna High Court in
Rabari
(1914) I.L.R. 41 Cal. 606, A.I.R. 1942 Pat. 46,, (1925)
Ghela ]adav
I.L.R. 4 Pat. 254 referred to above appear to us to be
v.
correct. In these circumstances reference need not be State of Bombay
made to the v.iew expressed by the Patna High Court
in (1932) I.L.R. 11 Pat. 697 which was a judgment
before the decision of the Privy Council in Dahu Raut's
case. The decision of the Bombay High Court in
I.L.R. 1937 Boni. 365 endeavoured to find a way 'in
which the difficulty could be resolved where the
Appellate Court was of the opinion that only the question of sentence was involved. For the purposes of
this appeal it is unnecessary for us to say anything
about this decision because what was stated there
· does not arise for consideration, as, in the present
case, according to the judgment of the High Court,
the appeal was admitted only on the point of sentence.
It was also urged by Mr. Umrigar that under s. 423
an Appellate Court had the power to reduce the
sentence. That is so, but that power can only
be exercised after the requirements of s. 422 have
been complied with. The Appellate Court after
hearing the appeal,
certainly has the power in
finally disposing of the
appeal to reduce
the
sentence but that does not entitle it to direct thii,t an
appeal is admitted only on the question of sentence.
We make it clear, however, that in dealing with Mr.
Umrigar's submission on this point we are concerned
with the powers of an Appellate Court and not with
the power of a High Court in the exercise of its revisional jurisdiction which does not arise for consideration in this appeal. In our opinion, the form of the .
order admitting the appeal in the present case was
invalid and the appellant could have insisted that
since the appeal had not been summarily dismissed,
the High Court should have heard his appeal on the
merits as well.
.
As the appeal was not heard o_n the merits, we considered whether the appeal should be sent back to the
High Court for rehearing on the merits. We have,
however, thought it fit to hear the appeal on the
merits for ourselyes.
Imam].
I960
Rabari
Ghela Jadav
v.
State of Bombay
Imam].
136
SUPREME COURT REltOR'.rS
[1960]
We, acoordingly, heard the learned Advocate for
the appellant on the evidence. It is cka.r to us from
a perusal of the evidence that the case has been
amply proved against the appellant. There was an
eye-witness who saw the appellant assaulting the
deceased with a stick. l{e was in some way related to
the deceased, which he attempted to deny, otherwise
there is nothing in his evidenee to indHce a court to
distrust his testimony. This eye-witness, Bava Tapu,
immediately after the assault, went to the Police Patel
of Simroli, one Keshav, and told him that the deceased
had been assaulted by the appellant. Keshav corroborated Bava Tapu in this respect.
Keshav's evidence
in this respect is also corroborated by Natha Jiwa who
stated that Bava Tapu came and informed Keshav that
Zina Hira had been severely assaulted and injured by
the appellant. Bogha Jiwa ;:1lso corroborated Keshav
in this respect. None of these witnesses have any real
motive to depose against the appellant. In addition
to this evidence there was the dying declaration of the
deceased as to who 'his assailant was. Furthermore,
there was the recovery of a stiok buried underground
at the instance of the appellaat which was found to be
stained with human blood according to the report of
the Serologist. The other circumstant.ial evidence
need not be referred to.
It was urged on behalf of the appellant that the reason
for the appellant assaulting the deceased could not be
true as no reference was made to it in the First InformatiOn lodged by Keshav. Reference also was made to the
evidence of the Police Officer Priyakant that no information of the theft had been lodged by the appellant
at the thana. Th!J appellant in his statement denied
that the deceased had committed , any theft in his
house and the witness Karsan brother of the appellant
had stated in cross examination that there had been
no theft in their house.
This witness was examined
by the prosecution but was declared hostile and permission was granted by the Court to cross-examine him.
It seems to us, however, that even if the story about
the accusation of theft against the deceased made by
t~e appellant was not stated in the First Information
the omission is of little ,consequence because even
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•
•
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3 S.C.R. SUPREME COURT REPORTS
131
Keshav stated in the First Information that he had
enquired from Bava Tapu as to how the quarrel had
started. Merely because there was no information
lodged about the theft at the police station, it does
not necessarily follow that the appellant could not
have been suspecting the deceased. The denial of the
appellant and of his brother cannot assume much
importance as it would be natural for them to deny
any such thing. Apart from this even if the real
cause for the assault may be obscure, if the evidence
is clear that the appellant assaulted the deceased, .it
matters very little if the Court has not before it a very
clear motive for the assault. As we have already said,
apart from Bava Tapu hesitating to admit that he was
somewhat related to the deceased, there was no apparent motive for him to depose against the appellant
in such a serious case as this. His conduct would show
that he had, in fact, witnessed the assault because
immediately after the assault he went to the Police
Patel Keshav and informed him that the appellant
had assaulted the deceased with a stick. There is no
reason to doubt the genuineness of the dying declaration. There is no good reason for supposing that the
deceased would have accused the appellant falsely as
there was no previous enemity established. It is also
unlikely that he would let go his real assailant and
accuse the appellant falsely. The dying declaration is
corroborated by the evidence of the eye-witness Bava
Tapu. It further receives corroboration from the·
recovery of the stick stained with human blood at the
instance of the appellant which had been identified by
Bava Tapu as belonging to the appellant.
It is clear, therefore, that the evidence in the case,
which we have carefully examined and see no good
reason to distrust, established beyond doubt that the
appellant had struck the deceased· several blows with
a stick and thus caused his ·death. He was, therefore,
guilty at least under s. 304 of the Indian Penal Code
as found by- the trial court. The reduced sentence
imposed by the High Court does not appear to be
unduly severe.
· ·
··
'
The appeal is, accordingly, dismissed .
.Appeal dismissed.
Rabar.i
G he la ] ad av ·
.. v.
State of Bombay
Imam].
•