Kanubhai Bhagvanbhai Nayak vs The State Of Gujarat

CRIMINAL APPEAL NO. 1540 OF 2018 (Arising out of S.L.P.(Crl.) No. 8739 of 2018)

Kanubhai Bhagvanbhai Nayak ….Appellant(s)

VERSUS

State of Gujarat ….Respondent(s) J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed against the final judgment

and order dated 25.04.2016 passed by the High Court

of Gujarat at Ahmedabad in Criminal Appeal No.1512

of 2011 whereby the Division Bench of the High Court

dismissed the appeal filed by the appellant herein and Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.12.03 confirmed the order of conviction and sentence dated 17:00:21 IST Reason: 1 30.09.2011 passed by the 9th Additional Sessions

Judge, Vadodara in Sessions Case No.101 of 2010.

3) Few facts need mention hereinbelow for the

disposal of the appeal.

4) By impugned order, the Division Bench of the

High Court dismissed the criminal appeal filed by the

appellant (accused) and confirmed his conviction and

sentence awarded by the 9th Additional Sessions

Judge, Vadodara in Sessions Case No. 101/2010

under Section 302 of the Indian Penal Code, 1860

(hereinafter referred to as “IPC”) which gave rise to

filing of the present appeal by way of special leave by

the appellant(accused) in this Court.

5) The question, which arises for consideration in

this appeal, is whether the High Court was justified in

dismissing the appeal filed by the accused and thereby

was justified in confirming the conviction and the

sentence awarded by the Additional Sessions Judge.

2

6) Heard Ms. Vibha Datta Makhija, learned senior

counsel for the appellant and Ms. Puja Singh, learned

counsel for the respondent.

7) Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

constrained to allow the appeal, set aside the

impugned order and remand the case to the High

Court for deciding the criminal appeal afresh on

merits.

8) The need to remand the case has been

occasioned because we find that the Division Bench

has neither discussed any issue arising in the case nor

appreciated the evidence and nor recorded its findings

on any of the issues arising in the case and urged by

the appellant.

9) Mere perusal of the impugned order would

indicate that the Division Bench has first set out the

post mortem report and on its perusal observed that

3 the injuries on the body of the deceased reveal that the

death was homicidal leading to murder. The Division

Bench then observed that the evidence led by “various

witnesses” reveal that it was the accused who was

present at the scene of the offence and carried the

attack on deceased. The Division Bench then observed

that since the Additional Sessions Judge had

“minutely examined” all the evidence led by the

prosecution and has given cogent and convincing

reasons, the High Court is in complete agreement with

the view taken by the Additional Sessions Judge. It is

only with this narration of facts, the Division Bench

dismissed the appeal.

10) In our opinion, keeping in view the powers of the

Appellate Court under Section 386 (b) of the Code of

Criminal Procedure, 1973, the Division Bench should

have examined the evidence of each prosecution

witnesses on issues arising in the case and the same

4 should have been examined in the light of the

challenge made by the accused in appeal and then a

finding should have been recorded either of affirmation

or modification or reversal, as the case may be.

11) There is neither any reference to any evidence,

nor its appreciation and nor there is any discussion

much less finding in the impugned order.

12) The High Court, in our opinion, is empowered in

its appellate jurisdiction to examine the issues of facts

and law while examining the legality and the

correctness of the impugned order. It is equally

incumbent upon the Division Bench to deal with

issues urged and then record its findings one way or

the other keeping in view the law laid down by this

Court which governs the issues.

5

13) We, therefore, find ourselves unable to concur

with such disposal of the appeal and feel inclined to

set aside the impugned order and remand the case to

the Division Bench of the High Court with a request to

decide the appeal afresh on merits in accordance with

law.

14) Having formed an opinion to remand the case, we

do not consider it proper to go into the merits of the

case. We, therefore, leave all the issues open to be

decided by the Division Bench on merits, in

accordance with law uninfluenced by our

observations.

6

15) In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. Impugned order

is set aside. We request the High Court to dispose of

the appeal as expeditiously as possible preferably

within six months.

16) Pending application(s), if any, stand(s) disposed

of.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [INDU MALHOTRA] New Delhi;

December 03, 2018

7