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Case Number

Criminal Appeal No. 309 of 1953, against order of Sub-Magistrate, Omalur, in C.C No. 535 of 1952

Advocates

For the Appellant: S.Mohan Kumara Mangalam, Advocates.

Judges

Somasundaram, J.

Acts

section, i.e, Section 106(3)
Section 423(1)(b)

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Smart Summary

Comprehensive Summary of the Opinion

Factual and Procedural Background

This appeal was preferred by the State against the acquittal of two accused persons by the Stationary Magistrate, Omalur, in C.C. No. 525 of 1952. The accused were initially charged with murder (S. 302, I.P.C.) for the death of Velayudham, who received injuries on 13-12-1951 and died at about 2:15 p.m. on the same day. The matter began as a Preliminary Register case; after the prosecution led evidence the Magistrate, on 30-4-1952, held that only a prima facie case under S. 325, I.P.C. was made out, discharged the accused of murder, framed a charge under S. 325, I.P.C., and tried them on that charge. Ultimately the learned Magistrate acquitted the two accused, and the State appealed that acquittal.

Material facts as pleaded by the prosecution: the first accused was a forest guard who collected a monthly “mamul” (payment) from villagers; the second accused aided him. The deceased had allegedly defaulted in paying mamul for two months. On 13-12-1951, the accused met the deceased and others returning from the forest, took the deceased towards the first accused's village, assaulted him severely (with sandals, hands and legs), and the first accused is also said to have struck the deceased with a stone on the abdomen, chest and other parts. The deceased was supported by witnesses to his village, taken to hospital next morning, and later died. The Medical Officer recorded serious condition and a dying declaration (Ex. P.8) was recorded by the Magistrate; a further statement to police is Ex. P.9. The accused surrendered to police on 16–17 December 1951, a charge-sheet under S. 302 was later laid, and the prosecution examined 14 witnesses (with P.Ws 2–6 as eye-witnesses).

Legal Issues Presented

Whether, on the evidence (including dying declarations Ex. P.8 and Ex. P.9 and eyewitness testimony of P.Ws 2 and 3), the acquittal should be set aside and the accused convicted for causing grievous hurt under S. 325 read with S. 34, I.P.C.
What is the scope of the appellate court's sentencing power under Section 423(1)(a) of the Criminal Procedure Code in an appeal against acquittal — specifically, whether the words “pass sentence according to law” permit the appellate court to impose any sentence within the statutory maximum for the offence or whether that power is restricted by what the trial court could have imposed.

Arguments of the Parties

Prosecution's Arguments (State)

Relied strongly on the dying declarations marked Ex. P.8 (to the Magistrate) and Ex. P.9 (to the police), in which the deceased consistently implicated the two accused as his assailants.
Relied on the evidence of eyewitnesses P.W.2 and P.W.3 who supported the account that both accused beat the deceased; no motive was shown for P.Ws 2 and 3 to depose falsely.
Pointed out medical evidence of multiple fractured ribs (6th–9th ribs) to corroborate serious beating and injuries inflicted by both accused.

Defence's Arguments (as noted in the lower court)

It was urged before the Magistrate that because accused 1 and P.W.12 produced five persons (including P.Ws 4 and 5) before the village munsif at about 6:30 p.m. on the day of occurrence, it was unlikely that the beating between 4 and 5 p.m. could have taken place as alleged.
In the lower court the defence suggested (as recorded by the Magistrate) that the deceased might have sustained injuries in a drunken brawl and accused had been falsely implicated; the appellate court observed that no witness had been cross-examined on this suggestion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Muthiah Chetti v. Emperor, 29 Mad 190	Interpreting Section 106(3) of the CrPC: appellate power under that section is not unlimited; it is confined to doing what the lower court could and should have done in the circumstances named in the section.	The court cited this case by analogy when discussing the scope of Section 423(1)(a). It noted the decision did not directly decide the S.423(1)(a) point but that the analogy might hold; the opinion used it in reviewing limitations suggested by precedent.
Maung E. Maung v. King, AIR 1940 Rang 118	Approved and followed the observations about limitations on appellate power (as in the Muthiah Chetti case).	The court recorded that this case approved the earlier observations but observed that the Rangoon case did not settle the precise point under S.423(1)(a) at issue in the present appeal.
In re Ponnuswami Servai, AIR 1938 Mad 315	Considered powers of appellate courts in appeals against conviction (not acquittal).	The court observed this is a case of appeal against conviction and therefore stated it is of no assistance to the specific question arising on appeal against acquittal in the present matter.
Emperor v. Abasalli, AIR 1935 Nag 139	Dealt with an appeal against acquittal; contains the observation that under Section 423 the appellate court is “empowered to pass a new sentence within the powers of the Magistrate who tried the case.”	The court noted this Nagpur case touches the present point but that the decision contained no detailed discussion of the full import of the words “pass sentence according to law.” The present court did not treat it as dispositive of the interpretative issue.

Court's Reasoning and Analysis

The appellate court examined both the factual findings and the legal questions raised by the trial Magistrate's judgment. The analysis proceeded in distinct steps:

Assessment of timeline and the village munsif entries:
The Magistrate had relied on the fact that five persons (including P.Ws 4 and 5) were produced before the village munsif at about 6:30 p.m. on the day of occurrence to cast doubt on the prosecution story that the beating occurred between 4 and 5 p.m. The appellate court examined this and concluded that the production at 6:30 p.m., about 1½ hours after the alleged beating, did not make the prosecution account impossible. It accepted the prosecution explanation that the five persons could have been met and produced by the accused after the occurrence. Therefore, the Magistrate’s inference that the timing rendered the prosecution story improbable was unjustified.
Evaluation of witness credibility and dying declarations:
The court treated Ex. P.8 (dying declaration to the Magistrate) and Ex. P.9 (statement to the police) as materially important. It criticized the Magistrate for failing to give adequate weight to these statements, noting that the deceased was in grave condition when Ex. P.8 was recorded and could not reasonably be expected to mention all details or names in that state. The omission of P.Ws 2 and 3 from Ex. P.8, but their presence in Ex. P.9, was not considered proof of improvement or fabrication given the deceased’s condition. The court found no sufficient reason why the deceased would falsely implicate the accused in either statement.
Treatment of alleged bias in certain witnesses:
The Magistrate had criticized P.Ws 4 and 5 as possibly biased because their loads of fuel were taken and presented to the village munsif; the appellate court accepted that their testimony could be tinged with grudge and may not be disinterested. However, the court emphasized that the bulk of the case depended on P.Ws 2 and 3 and the dying declarations, and that nothing suggested P.Ws 2 and 3 had motive to lie.
Medical evidence and the issue of whether the deceased “walked” home:
The Magistrate relied on medical evidence to conclude it was impossible for the deceased to have walked home, and used this to discredit P.Ws 2–5. The appellate court reviewed witness testimony showing that the deceased was supported on the shoulders of companions and that phrases such as “we led him to Gounder’s field supporting him on our shoulders” and “we brought the deceased walking all the distance; we merely supported him on our shoulders” were consistent. The court concluded the Magistrate misread this evidence by treating “walking” as meaning unassisted walking; thus the medical evidence did not falsify the witnesses’ account.
Rejection of defence suggestion (drunken brawl) as improperly relied upon:
The Magistrate referred to a defence suggestion that the injuries occurred in a drunken brawl and the accused were falsely implicated. The appellate court noted that no witness had been cross-examined on that suggestion and therefore it should not have been given weight by the Magistrate.
Conclusion on guilt:
Having accepted the dying declarations and the evidence of P.Ws 2 and 3 as reliable, and finding the medical evidence consistent with a severe beating (fractured ribs), the appellate court concluded that both accused were responsible for causing grievous hurt and should be convicted under S. 325, I.P.C., read with S. 34.
Sentencing analysis under Section 423(1)(a), CrPC:
The court analyzed whether, on an appeal against acquittal, the appellate court’s power to “pass sentence according to law” is limited to the powers of the trial court or extends to any sentence legally permissible for the offence. After reviewing precedent, the court concluded that the words permit the appellate court to impose any sentence that could legally be given for the offence (i.e., the power is not strictly confined to what the trial court could have imposed). However, the court also held that fairness considerations require that the accused should not be placed in a worse position than if he had been convicted by the trial court; consequently the court refrained from imposing a sentence more severe than the maximum that the Second Class Magistrate (who tried the case) could have imposed (six months). Accordingly, though the appellate power is wide, the court exercised restraint and sentenced each accused to six months' rigorous imprisonment for S. 325 read with S. 34.

Holding and Implications

Holding: Both accused were convicted for the offence under Section 325, I.P.C., read with Section 34, and each was sentenced to six months' rigorous imprisonment.

Implications:

The direct effect is that the appellate court allowed the State’s appeal, set aside the acquittal, convicted both accused under S. 325 read with S. 34, and imposed sentences of six months' rigorous imprisonment on each.
On the sentencing power under S. 423(1)(a), the court expressed its view that an appellate court is not strictly limited to the sentencing power of the trial court and can impose any sentence permissible by law for the offence. Nevertheless, as a practical and fairness-driven restraint, this court refrained from imposing a sentence greater than what the trial Magistrate (a Second Class Magistrate) could have imposed (i.e., six months). This interpretation and approach were applied in the present case when deciding the sentence to be imposed on appeal against acquittal.
The opinion does not purport to set a detailed new precedent on the full import of S. 423(1)(a); it records prior authorities, distinguishes them on facts or scope where appropriate, and states the court's view on the interpretative point while applying a remedial fairness constraint to sentencing in appeals against acquittal.

Disposition

Appeal allowed. Both accused convicted under S. 325 read with S. 34, I.P.C., and each sentenced to six months' rigorous imprisonment.

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Public Prosecutor v. Annamalai Udayan And Another

1. This is an appeal preferred by the State against the acquittal of the two accused by the learned Stationary Magistrate, Omalur in C.C No. 525 of 1952, on his file. The two accused were tried by the learned Magistrate for an offence under S. 325, I.P.C The police filed a charge-sheet against the two accused for the murder of one Velayudam who died as a result of injuries he received on 13-12-1951. The case was taken as a Preliminary Register case. But after evidence was let is, the learned Magistrate passed an order on 30-4-1952, holding that only a prima facie case against the two accused under S. 325, I.P.C was made out and discharged the accused of the offence of murder. A charge for an offence under S. 325, I.P.C was framed against the accused and they were tried for that offence.

2. The prosecution case is this. The first accused was a forest guard. The second accused was his henchman assisting accused in the collection of “mamul” payment from villagers who were allowed by accused 1 to collect fuel from the Reserve Forest without a permit. The learned Magistrate finds that accused had been demanding mamools from the deceased and other persons. It appears that the deceased, Velayudham, had committed default in the payment or mamul to accused 1 for 2 months prior to the occurrence which was on 13-12-1951. The accused met Velayudham and P.Ws 2 and 3 at about 3 p.m on 13-12-1951 while they were returning from Bodamalai forest collecting fuel and asked Velayudham to accompany them to Ayyampalayam where the first accused resided as he failed to pay the usual monthly mamul of Rs. 2 and a bundle of fuel to accused 1 for two months. P.Ws 2 and 3 also followed Velayudham and the accused towards Ayyampalayam pleading for the release of Velayudnam and promising accused 1 that the mamul would be duly paid shortly.

3. The first accused did not pay any heed to the request of P.Ws 2 and 3. When the party reached a Palmyra tope, where the pathway branches off to Vadugam Thainaickempatti, P.Ws 2 and 3 made one more effort and requested the first accused for his release. Accused 1 again refused. Velayudham then advised P.Ws 2 and 3 to stop pleading with accused 1 and to let accused 1 do anytiring according to law. Accused 1 got wild and assaulted Velayudham badly.

4. Accused 2 is also stated to have joined accused 1 and both of them gave a severe beating to Velayudham with sandals and also with hands & legs. It is also stated that accused 1 later picked up a stone and hit the deceased, Velayudham, on his abdomen, chest and other places. Three other persons, P.Ws 4 to 6 are stated to have come there on hearing the noise and their request to the accused not to beat Velayudham was of no avail. Velayudham, the deceased, fell down as a result of the injuries he received. The accused left him there and went away.

5. The witnesses took the deceased to their village walking and supporting him oo their shoulders. Near the village, P.W 2 brought a coir cot and from there they carried the deceased on the cot to his house. Next morning he was taken to a hospital. The Medical Officer at the time Velayudham was brought, did not think that the injuries inflicted on him were serious. Later, finding his condition very grave, the doctor sent for a Magistrate and got a dying declaration recorded from the deceased.

6. This dying declaration is marked as Ex. P. 8 in the case. Subsequently the police examined the deceased and the statement made to the police is marked as Ex. P. 9. The statement to the Magistrate was made by the deceased about 11-50 a.m, and to the police at about 1 p.m He died at about 2-15 p.m on the same day. An inquest was held over the body of the deceased by the police on the same day between 5 and 7-30 p.m P.Ws 2, 3 and 7 were examined at the inquest. The Inspector of Police proceeded to Ayyampalayam on the same night and found the two accused missing from their houses.

7. The first accused surrendered to the police on 17-12-1951. The second accused also surrendered to the police on 16-12-1951. A charge-sheet was laid against the accused for an offence under S. 302, I.P.C

8. The prosecution examined 14 witnesses in this case. P.Ws 2 to 6 are eye-witnesses. P.W 7 is the widow of the deceased. She spoke to the fact that when the deceased was brought to his house, he told her that he was beaten by the accused for his failure to pay the money. He did not say how he was beaten by the accused. She gave him fomentation. The next morning he was taken to the hospital as he was suffering from pain.

9. There is evidence that accused 1 and P.W 12 produced five persons including P.Ws 45 before the village munsif Vadugam at about 6-30 p.m, on the day of the occurrence in connection with a case of illicit removal of fuel by them. The village munsif admitted the receipt of the fuel loads from the above persons in Ex. P. 6. On the strength of this, it was contended in the lower court that P.Ws 4 and 5 have a grudge against the accused and their evidence ought not to be accepted against accused.

10. It was also urged in the lower court that if this was true, namely, accused 1 and P.W 12 produced the 5 persons including P.Ws 4 and 5, before the village munsif of Vadugam at about 6-30 p.m on the same day of occurrence, it was unlikely that the occurrence would have taken place as alleged by the prosecution. This is what the learned Magistrate observes in his judgment:

“The occurrence is stated to be at about 4 to 5 p.m If the occurrence were true, I cannot see how accused I could have produced the five persons mentioned in Ex. P. 6 at 6-30 p.m before P.W 10 at Vadugam about 3/4 miles away. The five persons could not have been kept ready for production before P.W 10. It must certainly have taken considerable time.”

11. The prosecution story with regard to this is that the five persons were produced before the village munsif on 14-12-1951, but accused 1 had arranged to have it recorded as on 13-12-1951 with a view to improbabilise the occurrence. The learned Magistrate was quite justified in rejecting the theory of the prosecution that they were brought on 14-12-1951. The records produced clearly show that they had been produced before the village munsif, P.W 10, at 6-30 p.m on 13-12-1951. But this does not in any way militate against the truth of the prosecution case against the accused.

12. According to the evidence of P.Ws 2 and 3, they were returning from Podamalai at about 3 p.m which is about a mile from the palmyra tope where the deceased was beaten. The occurrence would not have taken more than a few minutes. The accused after beating the deceased left him there and went away. The five persons were produced by the first accused before the village munsif at 6-30 p.m more than 1½ hours after the occurrence. It is just possible that these five persons who were coming with head loads of fuel were met by the first accused after the occurrence and he might have produced them before the village munsif at 6-30 p.m on the same day.

13. There is nothing impossible or improbable in this. The view of the Magistrate, that because P.Ws 4 and 5 and others were produced before the village munsif at 6-30 p.m, the beating of the deceased by the accused between 4 and 5 p.m could not have taken place is not justified.

14. As regards the learned Magistrate's criticism of P.Ws 4 and 5 there seems to be some justification because they were taken to the village munsif and their head loads of fuel were removed and naturally they would entertain a grudge against accused. So their evidence may not be disinterested evidence. But nothing has been suggested against P.Ws 2 and 3 for their deposing falsely against the accused. Major portion of the Magistrate's criticism of the evidence is directed against P.Ws 4 and 5. So far as P.W 2 is concerned, what the learned Magistrate says is that he is the son of the paternal uncle of the deceased.

15. The fact, that P.W 2 is related to the deceased, is not a ground for rejecting evidence against the accused unless motive on the part of the witness to depose falsely against the accused is shown. The learned Magistrate makes a reference to the non-mention of P.Ws 2 and 3 in Ex. P. 8, the dying declaration of the deceased, and their mention in Ex. P. 9, the statement of the deceased to the police.

16. The learned magistrate says that the mention’ of P.Ws 2 and 3 in Ex. P. 9, without mentioning in Ex. P. 8 is the first step towards the improvement in the case, and adds that the introduction of P.Ws 4 to 6 in the evidence is the second process. The learned Magistrate has overlooked the serious condition in which the deceased was when he gave the dying declaration. The condition was sufficiently serious (as proved by his death at 2-15 p.m) that he could not be expected to remember everything and mentioned the same in the dying declaration. He must have been in great agony and suffering, in fact the Medical Officer finding his condition very serious, had sent for a Magistrate to record his dying declaration. Therefore, the omission of P.Ws 2 and 3 in Ex. P. 8 does not in any way discredit the testimony against the accused. The learned Magistrate does not appear to have given due weight to Ex. P. 8 and Ex. P. 9 where the deceased has consistently implicated the two accused as his assailants. There is no sufficient reason for the deceased to implicate the two accused falsely in Ex. P. 8 or Ex. P. 9.

17. The learned Magistrate says that it was suggested by the defence that the deceased had sustained those injuries during a drunken brawl and that the accused had beers falsely accused of causing the injuries. I find no suggestion of this kind of any witness. The learned Magistrate should have rejected the suggestion made by the learned advocate for the defence, as he had not chosen to put that suggestion to the eye-witnesses in their cross-examination. In the absence of such a suggestion to the eye-witnesses, it does not deserve any consideration by the court.

18. The learned Magistrate relies on the medical evidence to show that the deceased could not have walked after the occurrence. About this he observes in his judgment as follows:

“It is inconceivable that the deceased could have walked from the scene of occurrence to his village Vadugam a distance of 3/4 miles. The medical evidence completely falsified the account of P.Ws 2 to 5 that the deceased who had sustained the injuries at Panankadu near Ayyampalayam, had walked home”.

19. The learned Magistrate does not appear to have read carefully the evidence on this point. P.W 2 deposes with regard to this as follows:

“We led him to Gounder's field supporting him on our shoulders. I went away to bring a cot to carry him. In the meanwhile the others brought the deceased to our village by supporting him on their shoulders.”

20. Even in cross-examination, he states as follows:

“We led the deceased walking”.

21. P.W 3 in his evidence states as follows:

“We all took the deceased to our village supporting him on our shoulders.”

22. In the cross-examination this is what P.W 3 states:

“We brought the deceased walking all the distance; we merely supported him on our shoulders.”

23. From the above evidence it is clear that by walking it means that the deceased did not go to his village walking alone. The witnesses supported the deceased on their shoulders. The Medical Officer does not say that this is impossible. The learned Magistrate thinks that the deceased, after receiving the injuries, walked straight to his house without any support whatever. It appears to me that the learned Magistrate has misread this portion of the evidence with a view to acquit the accused.

24. The learned Public Prosecutor has placed strong reliance on Ex. P. 8 and P. 9, the two dying declarations of the deceased and on the evidence of P.Ws 2 and 3 against whom it is urged there is no reason shown for giving false evidence against the accused. Ex. P. 8 and P. 9 are corroborated by the evidence of P.Ws 2 and 3 and as contended by the Public Prosecutor there is no reason, for disbelieving P.Ws 2 and 3.

25. Their evidence and the dying declarations show that both the accused are responsible for causing the injuries to the deceased. The medical evidence shows that the 6th, 7th, 8th and 9th ribs were fractured. There was indiscriminate beating by both the accused and therefore bodi must be held guilty under S. 325 read with S. 34 I.P.C I therefore find both the accused guilty under S. 325, I.P.C

26. As regards the sentence, the question is what sentence this court can give in an appeal against acquittal. Under Section 423(1)(a) of the Cr PC the court hearing the appeal may find the accused guilty and “pass sentence according to law”. What is meant by “passing sentence according to law?” Does it mean any sentence within the sentence prescribed for the offence or is it restricted by the power of the trial court? In my opinion, the words “pass sentence according to law” mean any sentence that could be given for the offence.

27. In — ‘Muthiah Chetti v. Emperor’, 29 Mad 190 (A), interpreting Section 106(3) of the Cr PC, it has been held that power given to an appellate court to make an order under this section, i.e, Section 106(3) of the Cr PC is not an unlimited power to make such an order in, any circumstances, but is to be taken as giving the appellate court power to do only that which the lower court could and should have done, and therefore that the power of the court to pass such an order is confined to cases where the conviction has been by a court named in the section and in the circumstances required by the section. In this case, the words “sentence according to law” mentioned in S. 423(1)(a) have not come up for consideration. But the scope of S. 106(3) is quite as wide as S. 423(1)(a) and the analogy may perhaps hold good.

28. The above observations were approved and followed in — ‘Maung E. Maung v. King’, AIR 1940 Rang 118 (B). The facts in the Rangoon case are these: A first Class Magistrate convicted the accused on two charges of cheating and sentenced him to two years rigorous imprisonment on the first charge and to one year on the second charge, the sentences to run concurrently. In appeal the Sessions Judge held that the obtaining of the two sums forms part of the same transaction and that a single charge must have been framed.

29. The sentence was therefore altered to one of six months rigorous imprisonment, and a fine of Rs. 3000 in default three months rigorous imprisonment. In revision the High Court of Rangoon reduced the fine to Rs. 1000 holding that the power given to the appellate court under S. 423 is not an unlimited power but is to be taken as giving the appellate court to do only that which the lower court could and should have done. This again does not touch the point in question.

30. In the above case Section 423(1)(b) of the Cr PC has come in for consideration and not (1)(a). The powers of an appellate court in an appeal against a conviction were considered and they are certainly different in their scope from those of an appellate court in an appeal against acquittal.

31. The case in — ‘In re Ponnuswami Servai, AIR 1938 Mad 315 (C) is also a case of an appeal against conviction. It is of no assistance to the case under consideration.

32. In — ‘Emperor v. Abasalli’, AIR 1935 Nag 139 (D) the High Court was dealing with an appeal against acquittal. The accused was convicted by the First Class Magistrate and sentenced to one year imprisonment and a fine, but the Sessions Judge on appeal acquitted him. The High Court in setting aside the acauittal and convicting the accused has observed as follows:

“Under the provisions of Section 423 of the Cr PC I am now empowered to pass a new sentence within the powers of the Magistrate who tried the case.”

33. The Nagpur case is the only case which touches this point, but there is no discussion. The full import of the words “pass sentence according to law”, has not been considered. There is no need to read into the section something which the words in their literal meaning do not imply.

34. As I have said already, in my view, the power of an appellate Court in hearing the appeal against acquittal is not in any way restricted or limited to the powers of the trial court.

35. Though there is no such limitation or restriction, still there is one circumstance which altogether cannot be ignored and which must indeed be considered before imposing the sentence and that is, what is it that the accused would have got if he was convicted by the Magistrate. He would not have got more than six months, the maximum the Second Class Magistrate who tried him can give.

36. The fact that he has been acquitted should not place him in a more disadvantageous position than if he were convicted. The sentence should not therefore be more severe than what he would have got in a case of conviction. In this view I would refrain from passing any sentence other than what the lower court is competent to give. I would therefore sentence bod the accused each to six months rigorous imprisonment for the offence under S. 325 read with S. 34, I.P.C

K.S.B

37. Appeal allowed.

Public Prosecutor v. Annamalai Udayan And Another

Comprehensive Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Prosecution's Arguments (State)

Defence's Arguments (as noted in the lower court)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Public Prosecutor v. Annamalai Udayan And Another

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