The Karnataka High Court has observed that the appellate court while converting the judgment of acquittal into conviction, need not hear the accused on the question of sentence.
The bench of Justice S Sujatha and Justice John Michael Cunha made this observation while reversing the trial court order of acquittal of a man accused of murdering his wife. The trial court had concluded that the deceased died due to the injuries caused in a motor vehicle accident and the prosecution failed to prove that she was subjected to cruelty in the matrimonial home.
Reversing those findings, the high court observed that the accused husband alone committed the murder of the deceased and to cover up the offence, he placed the dead body by the roadside, beside the motorcycle and damaged its headlight and fled away from the scene and remained to abscond till he was arrested.
While ordering sentence, the counsel for accused raised a question as to whether the appellate court on the reversal of the order of acquittal into conviction, must hear the accused on the nature and quantum of sentence.
The bench observed that in an appeal from an order of acquittal, the appellate court is well within its powers, to reverse the order of acquittal and to order for retrial or to record a finding of guilt and pass sentence “according to law”. The code does not prescribe any fetters on the powers of the Court in the matter of awarding sentence except that the proposed sentence must be “according to law”, the bench said.
Referring to Section 325 and Section 248 of CrPC, the court observed that the judge conducting a sessions trial and the magistrate conducting a warrant case is mandated to hear the accused on the question of sentence and only thereafter, to impose the sentence in accordance with law and these sections are not made applicable to the hearing of appeals under Chapter XXIX of the Code dealing with the appeals.
The court further observed: “Only restriction that emerge from the above provisions is that, the appellate Court cannot enhance the sentence without affording an opportunity of hearing to the accused and secondly the appellate Court cannot inflict greater punishment than prescribed for the said offence. Except these two restrictions, no other restrictions are prescribed under the Code requiring the Appellate Court to hear the accused before passing the sentence on reversal of the order of conviction.”
The court clarified: “We make it clear that the position would have been different if the accused was to be sentenced to death penalty, in which event necessarily the accused should be provided with a fresh opportunity to bring to the notice of the Court, such circumstances as may help the Court in awarding an appropriate sentence.”