Rabari Ghela Jadav vs The State of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 14 of 1959

Decision Date: 26 February, 1960

Coram: Syed Jaffer Imam, Bhuvneshwar P. Sinha, J.C. Shah

In the case titled Rabari Ghela Jadav versus The State of Bombay, the Supreme Court of India delivered its judgment on the twenty‑sixth day of February, 1960. The judgment was authored by Justice Syed Jaffer Imam and was pronounced by a bench composed of Justice Syed Jaffer Imam, Justice Bhuvneshwar P. Sinha who served as Chief Justice, and Justice J.C. Shah. The petitioner, Rabari Ghela Jadav, challenged a conviction recorded under section 304, Part I of the Indian Penal Code, for which the trial court had imposed a sentence of life imprisonment. The appeal was taken to the Bombay High Court, where, according to the High Court’s order dated nineteenth November 1957, the appeal was admitted solely on the question of sentence. The High Court subsequently reduced the sentence to ten years’ rigorous imprisonment. The present appeal to the Supreme Court was granted special leave under the provisions of the Code of Criminal Procedure, 1898, specifically sections 418(1), 419, 421 and 422, which govern the admission of criminal appeals on a question of sentence. The citation for this judgment is reported in the All India Reporter at 1960 AIR 748 and in the Supreme Court Reports (Third Series) at 1960 SCR (3) 130. The headnote of the judgment summarized that the appellant contended that the High Court lacked authority to admit the appeal only on sentencing issues and asserted his right to be heard on the merits of the conviction. The Court examined whether an appellate court possessed the power to limit an appeal to sentencing alone, and it concluded that while an appellate court could summarily dismiss an appeal for lack of sufficient ground, it could not direct that the appeal be heard only on the question of sentence. Consequently, the appellant was entitled to have his appeal considered on the merits in the High Court. The Court’s reasoning relied upon earlier decisions, including The King Emperor v. Dahu Raut (1935) L.R. 62 I.A. 129, which was followed, and the authorities Nafar Sheikh v. Emperor (1914) I.L.R. 41 Cal. 606, Gaya Singh v. King Emperor (1925) I.L.R. 4 Pat. 254, and Sudhir Kumar Neogi and Another v. Emperor, A.I.R. (1942) Pat. 46, which were approved. The case of Bai Dhankor v. Emperor (1937) I.L.R. Bom. 365 was held not applicable.

The matter before the Supreme Court was Criminal Appeal No. 14 of 1959, which sought special leave to be heard against the judgment and order dated nineteenth November 1957 of the Bombay High Court at Rajkot, itself arising from the judgment and order dated thirty‑first August 1957 of the Sessions Judge, Sorath Division, Junagadh, in Sessions Case No. 26 of 1957. Counsel for the appellant was identified as P. K. Chatterjee, while the respondents were represented by H. J. Umrigar and B. H. Dhebar. In the course of the proceedings, Justice Imam delivered the Court’s opinion, noting that the appeal had been admitted by the High Court only on the question of sentence despite the conviction under section 304, Part I of the Indian Penal Code. The Court observed that the High Court’s limitation of the appeal to sentencing alone was inconsistent with the statutory framework, which granted appellate courts the authority to dismiss an appeal summarily when no sufficient ground existed but did not empower them to restrict the scope of an appeal to sentencing issues alone. Accordingly, the Supreme Court held that the appellant’s right to have the merits of his conviction examined in the High Court had been infringed, and it affirmed that the appeal should have been heard on the full question of the conviction, not solely on the sentence.

The Court observed that the High Court had reduced the appellant’s punishment from life imprisonment to ten years of rigorous detention. Counsel for the appellant argued that the High Court could not, according to law, entertain an appeal solely on the sentencing issue; the appellant should also have been permitted to challenge the substance of his conviction. It was further submitted that the evidence on which the conviction rested was inadequate and that the appellant was therefore entitled to an acquittal. The prosecution’s case was summarized as follows: on 6 April 1957 the deceased, Zina Hira, was returning from a neighboring village to his home when he encountered the appellant on the road. The appellant accused Zina Hira of stealing items from his house, an allegation the deceased denied. In response, the appellant struck the deceased with a stick that was fitted with iron rings. Several blows were delivered, causing Zina Hira to fall. Although a physician from Keshod, located eight miles away, was summoned, the injured man was later transferred to Junagadh for superior medical care. He died during the journey in the early hours of 7 April. The appellant’s defence argued that he was not present at the scene and pleaded not guilty to the charge. The High Court, however, admitted the appeal only on the question of sentence. Counsel for the appellant contended that this limitation was inconsistent with sections 421 and 422 of the Code of Criminal Procedure. To support this contention, reliance was placed on several precedents, including decisions of the Calcutta High Court and Patna High Court in Nafar Sheikh v. Emperor, Gaya Singh v. King Emperor, Sudhir Kumar Neogi and Another v. Emperor, and Sheikh Rijhu and Others v. Emperor, as well as the Privy Council decision in The King‑Emperor v. Dahu Raut. Additional citations included the Patna High Court judgment in Kuldip Das v. King Emperor and the Bombay High Court ruling in Bai Dhankor v. Emperor. In order to assess the appellant’s submission, the Court noted that reference to the relevant provisions of Chapter XXXI of the Code governing appeals was essential. Section 418(1) provides that an appeal may be filed on questions of fact as well as questions of law, except where a jury trial has occurred, in which circumstance the appeal is limited to questions of law. The Court indicated that subsection (2) of the same section was not material to the present appeal. Further, section 419 mandates that an appeal must be presented in writing as a petition by the appellant or his pleader, and that the petition must be accompanied by a copy of the judgment or order being challenged, and, where a jury trial is involved, a copy of the heads of charge recorded under section 367.

The Court explained that under section 419 an appeal must be presented as a written petition by the appellant or his pleader, and that petition must be accompanied by a copy of the judgment or order being appealed. In cases where the trial was conducted by a jury, the petition must also include a copy of the heads of charge recorded under section 367. After such a petition is filed, the procedure laid down in sections 421 and 422 of the Code of Criminal Procedure becomes applicable. Section 421 provides that on receipt of the petition and the accompanying copy, the appellate court shall examine them. If the court is of the opinion that there is no sufficient ground for interfering, it may dismiss the appeal summarily, but only after the appellant or his pleader has been given a reasonable opportunity to be heard in support of the appeal. Before making a summary dismissal, the court may, at its discretion, call for the record of the case, although it is not bound to do so. The Court cited the authorities (1914) I.L.R. 41 Cal. 606; (1925) I.L.R. 4 Pat. 254; A.I.R. (1942) Pat 46; A.I.R. (1931) Pat. 351; (1935) L.R. 62 I.A. 129; (1932) I.L.R. 11 Pat. 697; and (1937) I.L.R. CB Bom 365 in support of this interpretation. Section 422 stipulates that if the appeal is not dismissed summarily, the appellate court must issue a notice to the appellant or his pleader and to the officer appointed by the State Government, indicating the time and place at which the appeal will be heard. Upon request by that officer, the court must also furnish a copy of the grounds of appeal. In appeals under section 411A, subsection (2), or section 417, a similar notice must be given to the accused. The Court observed that the language used to record an order admitting the appeal, when it is not summarily dismissed, is not a preferred expression, as noted by the Privy Council in The King‑Emperor v. Dahu Raut. Section 421 thus gives the appellate court ample authority to dismiss an appeal summarily when no sufficient ground exists, while section 422 obliges the court to give proper notice of the appeal’s hearing when it elects not to dismiss it summarily.

In this case the Court observed that the provision requiring the State to appoint an officer to give notice of the time and place of hearing applied to the entire appeal and did not permit a partial summary dismissal. The Court noted that the statutory scheme expressly excluded the possibility of dismissing only part of an appeal, a principle that had been affirmed by the Privy Council in the case of The King‑Emperor v Dahu Raut, where Lord Thankerton had explained that section 421 excluded any partial summary dismissal, for example where only the conviction was being appealed. The State of Bombay submitted that the facts before the Privy Council differed from those in the present matter because, in the earlier case, notices under section 422 had not been issued and the record had not been sent in accordance with section 423, whereas in the present case both the notice under section 422 and the sending of the record under section 423 had been complied with. Relying on the concluding portion of the Privy Council judgment, the State argued that the appellate court was entitled to dismiss an appeal summarily under section 421 when there was no sufficient ground for interference, and that when an appeal was not dismissed summarily the court was bound to follow the notice provisions of section 422 and the record‑sending provisions of section 423. The Court, however, held that although the appellate court possessed the power to dismiss an appeal summarily under section 421 when it found no sufficient ground for interference, it did not possess the authority to direct that the appeal be heard solely on the question of sentence. Such an order did not constitute a summary dismissal under section 421, nor was it an order made under section 422. The Court emphasized that an appeal, once filed, challenged both the conviction and the sentence, and it was not permissible for the appellate court to limit the hearing to the sentence alone. This interpretation of sections 421 and 422 was consistent with the Privy Council’s construction of those provisions in the Dahu Raut case.

In discussing the authority of Raut’s case, the Court observed that the rulings of the Calcutta High Court and the Patna High Court reported in (1914) I.L.R. 41 Cal. 606, A.I.R. 1942 Pat. 46 and (1925) I.L.R. 4 Pat. 254 were, in the Court’s view, correct. Consequently, the Court found no necessity to refer to the view expressed by the Patna High Court in (1932) I.L.R. II Pat. 697, a judgment that was delivered before the Privy Council’s decision in Dahu Raut’s case. The Court also noted that the Bombay High Court’s decision reported in I.L.R. 1937 Bom. 365 attempted to resolve the difficulty that arose when an appellate court considered only the question of sentence. However, the Court held that, for the present appeal, it was unnecessary to discuss that decision because, according to the judgment of the High Court, the appeal had been admitted solely on the point of sentence.

The Court acknowledged the argument advanced by counsel that, under Section 423, an appellate court possessed the power to reduce a sentence. The Court agreed that such power existed, but emphasized that it could be exercised only after the procedural requirements of Section 422 had been fulfilled. While an appellate court, after hearing an appeal, undeniably had authority to reduce the sentence in its final disposal, this authority did not permit the court to direct that the appeal be heard only on the sentencing issue. The Court clarified that its discussion of this submission concerned the powers of an appellate court and not the power of a High Court exercising its revisional jurisdiction, a matter that did not arise for consideration in the present appeal.

In the Court’s opinion, the form of the order admitting the appeal in this case was invalid. The appellant could have insisted that, since the appeal had not been summarily dismissed, the High Court should have been required to hear the appeal on its merits as well. Because the appeal was not heard on the merits, the Court considered whether the appeal should be remitted to the High Court for a rehearing on the merits. Ultimately, the Court decided that it was appropriate to hear the appeal on the merits itself. Accordingly, the Court heard the counsel appointed for the appellant on the evidence presented.

After a careful review of the evidence, the Court found that the case had been amply proved against the appellant. An eyewitness had testified that he saw the appellant assaulting the deceased with a stick. Although the witness, identified as Bava Tapu, was in some way related to the deceased and attempted to deny that relationship, the Court saw no reason in his testimony to distrust him. Immediately after the assault, Bava Tapu went to the Police Patel of Simroli, a man named Keshav, and reported that the deceased had been assaulted by the appellant. The testimony of Keshav corroborated the account given by Bava Tapu. The Court noted Keshav’s evidence, which supported the eyewitness testimony, as part of the material that established the appellant’s guilt.

The Court noted that Natha Jiwa also supported Keshav’s account by stating that Bava Tapu came to Keshav and reported that Zina Hira had been severely assaulted and injured by the appellant. In the same manner, Bogha Jiwa gave corroboration to Keshav’s version of events. The Court observed that none of these witnesses possessed any real motive to give testimony against the appellant. In addition to the eyewitness statements, the Court considered the dying declaration of the deceased, in which the deceased identified his assailant. Further evidence consisted of a stick recovered from underground at the appellant’s direction; the serologist’s report indicated that the stick was stained with human blood. The Court held that the remaining circumstantial evidence need not be detailed further.

Representing the appellant, counsel argued that the alleged motive for the assault could not be true because the First Information Report filed by Keshav made no reference to such a motive. Counsel also cited the testimony of Police Officer Priyakant, who asserted that the appellant had not lodged any theft‑related information at the police station. The appellant, in his statement, denied that the deceased had committed any theft in his house, and the witness Karsan, the appellant’s brother, testified on cross‑examination that no theft had occurred in their house. Although this witness was examined by the prosecution, the Court declared him hostile and granted permission to cross‑examine him. The Court observed, however, that even if the accusation of theft was omitted from the First Information Report, the omission was of little consequence, because Keshav’s report already recorded that he had inquired from Bava Tapu about how the quarrel began. The absence of a theft report at the police station does not necessarily indicate that the appellant could not have suspected the deceased. The Court further held that the denials of the appellant and his brother could not be given great weight, as it is natural for them to deny any such allegation. Moreover, even if the precise reason for the assault remained unclear, the evidence establishing that the appellant assaulted the deceased was clear, and the Court need not have a definitive motive before finding the appellant guilty. The Court reiterated that, apart from Bava Tapu’s hesitation to admit a familial relationship with the deceased, there was no apparent motive for him to give false testimony against the appellant in a serious case. His conduct, namely immediately reporting to Police Patel Keshav that the appellant had assaulted the deceased with a stick, demonstrated that he had indeed witnessed the assault. The Court found no reason to doubt the authenticity of the dying declaration, and saw no justification for supposing that the deceased had falsely accused the appellant, given the lack of any established prior enmity. It was also regarded as unlikely that …

In the facts of the case, the Court observed that it was implausible for the deceased to have released his actual attacker and then falsely implicated the appellant. The dying declaration of the deceased was found to be supported by the testimony of the eyewitness, Bava Tapu. Further confirmation came from the discovery of a stick that bore human blood, which had been recovered in connection with the appellant; Bava Tapu identified that very stick as belonging to the appellant. After a careful review of all the material presented, the Court concluded that there was no reasonable basis to doubt the reliability of the evidence, and that the combined testimony and physical evidence established beyond doubt that the appellant had struck the deceased several times with the stick, thereby causing the victim’s death. Accordingly, the appellant was held guilty of the offence punishable under section 304 of the Indian Penal Code, as the trial court had previously determined. The Court also considered the sentence imposed by the High Court, noting that the reduction did not appear to be excessively lenient. On that basis, the Court dismissed the appeal, confirming the conviction and the sentence.